How do I comment on this proposed AD? We invite you to submit any written relevant data, views, or arguments regarding this proposal. Send your comments to an address listed under ADDRESSES. Include the docket number, “FAA-2005-20440; Directorate Identifier 2005-CE-05-AD” at the beginning of your comments. We will post all comments we receive, without change, to http://dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed rulemaking. Using the search function of our docket Web site, anyone can find and read the comments received into any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). This is docket number FAA-2005-20440; Directorate Identifier 2005-CE-05-AD. You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78) or you may visit http://dms.dot.gov.

Are there any specific portions of this proposed AD I should pay attention to? We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. If you contact us through a nonwritten communication and that contact relates to a substantive part of this proposed AD, we will summarize the contact and place the summary in the docket. We will consider all comments received by the closing date and may amend this proposed AD in light of those comments and contacts.

Where can I go to view the docket information? You may view the AD docket that contains the proposal, any comments received, and any final disposition in person at the DMS Docket Offices between 9 a.m. and 5 p.m. (eastern standard time), Monday through Friday, except Federal holidays. The Docket Office (telephone 1-800-647-5227) is located on the plaza level of the Department of Transportation NASSIF Building at the street address stated in ADDRESSES. You may also view the AD docket on the Internet at http://dms.dot.gov. The comments will be available in the AD docket shortly after the DMS receives them.

What events have caused this proposed AD? For the Aero Advantage ADV200 series (part numbers (P/Ns) ADVPL211CC and ADVPL212CW) vacuum pumps, FAA has received reports of 14 single shaft failures and 11 dual shaft failures in a population of 285 pumps. Nine of the failures occurred with less than 100 hours time-in-service. The failures are concentrated on airplanes with the Lycoming Engines IO-540 series engines.

In May 2004, Aero Advantage reported to FAA that they had stopped production and sales of the pumps and that they were quitting the business.

The Aero Advantage ADV200 series vacuum pumps are installed under supplemental type certificate number SA10126SC, through field approval, or other methods. The installation of the vacuum pump includes a monitor system, airplane flight manual supplement (AFMS), and a placard.

What is the potential impact if FAA took no action? Failure or malfunction of the vacuum pump during instrument flight rules (IFR) flight can lead to loss of flight instruments critical for flight. The loss of flight instruments could cause pilot disorientation and loss of control of the aircraft.

What has FAA decided? We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other products of this same type design. For this reason, we are proposing AD action.

What would this proposed AD require? This proposed AD would require you to remove any Aero Advantage ADV200 series (P/Ns ADVPL211CC and ADVPL212CW) vacuum pump, the related monitor system, the applicable AFMS and related placard installed under supplemental type certificate number SA10126SC, through field approval, or other methods. It would also require you to install an FAA-approved vacuum pump other than the affected part numbers.

How does the revision to 14 CFR part 39 affect this proposed AD? On July 10, 2002, we published a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs FAA's AD system. This regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. This material previously was included in each individual AD. Since this material is included in 14 CFR part 39, we will not include it in future AD actions.

How many airplanes would this proposed AD impact? We estimate that this proposed AD could affect 285 airplanes in the U.S. registry.

What would be the cost impact of this proposed AD on owners/operators of the affected airplanes? We estimate the following costs to do this proposed removal and replacement. We have no way of determining the exact number of airplanes that will need this removal and replacement:

What authority does FAA have for issuing this rulemaking action? Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this AD.

Would this proposed AD impact various entities? We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD 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.

Would this proposed AD involve a significant rule or regulatory action? For the reasons discussed above, I certify that this proposed AD:

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. 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.

We prepared a summary of the costs to comply with this proposed AD (and other information as included in the Regulatory Evaluation) and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES. Include “AD Docket FAA-2005-20440; Directorate Identifier 2005-CE-05-AD” in your request.

Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend 14 CFR part 39 as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

This action applies to air pollution sources which are subject to Ohio's permit to install regulations in OAC 3745-31.

1. The EPA Regional Office has established an electronic public rulemaking file available for inspection at RME under ID No. R05-OAR-2004-OH-0004, and a hard copy file which is available for inspection at the Regional Office. The official public file consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public rulemaking file does not include CBI or other information whose disclosure is restricted by statute. The official public rulemaking file is the collection of materials that is available for public viewing at the Air Programs Branch, Air and Radiation Division, EPA Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. EPA requests that, if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal holidays.

2. Electronic Access. You may access this Federal Register document electronically through the regulations.gov Web site located at http://www.regulations.gov where you can find, review, and submit comments on Federal rules that have been published in the Federal Register, the Government's legal newspaper, and that are open for comment.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at the EPA Regional Office, as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in the official public rulemaking file. The entire printed comment, including the copyrighted material, will be available at the Regional Office for public inspection.

You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number by including the text “Public comment on proposed rulemaking Region 5 Air Docket R05-OAR-2004-OH-0004” in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

As stated in the December 31, 2002, EPA “NSR Reform” rulemaking, State and local permitting agencies must adopt and submit revisions to their part 51 permitting programs implementing the minimum program elements of that rulemaking no later than January 2, 2006 (67 FR 80240). With this submittal, Ohio requests approval of program revisions to satisfy this requirement.

The OEPA submitted these regulatory revisions to EPA for parallel processing on September 14, 2004, which was prior to final adoption of the State rules. Ohio adopted the final rules on October 28, 2004.

Ohio has incorporated the definitions codified in OAC 3745-21-01 to apply in OAC 3745-31 of the new rules. EPA proposes to approve these changes.

Ohio has revised the definition of “actual emissions” in OAC 3745-31-01(C) to add the term “regulated NSR pollutant” (see definition below), to revise the language to specify the time frame as a “consecutive twenty-four (24) month period,” and to add language stating that this definition does not apply for calculating a significant emissions increase or for establishing a Plantwide Applicability Limit (PAL). Ohio also revised the rule language to require that electric utility steam generating unit actual emissions are to be based on potential to emit rather than representative actual annual emissions. The revised definition of “actual emissions” is consistent with the definition in 40 CFR 51.166(b)(21) and 40 CFR 51.165(a)(1)(xii), therefore we propose to approve this definition.

Ohio has established the definition of “actuals PAL” in OAC 3745-31-01(D). This definition is consistent with the definition of “clean unit” in 40 CFR 51.166(w)(2)(i) and 40 CFR 51.165(f)(2)(i), therefore we propose to approve this definition.

Ohio has added a definition in OAC 3745-31-01 (O) to establish the baseline actual emissions for any existing electric utility steam generating unit to be the average rate at which the unit actually emitted the pollutant during any consecutive 24-month period within the 5-year period immediately preceding when the owner or operator begins actual construction of the project. This definition also establishes the baseline actual emissions for any existing emission unit other than an electric utility steam generating unit to be the average rate at which the unit actually emitted the pollutant during any consecutive 24-month period within the 10-year period immediately preceding either the date when the owner or operator beings actual construction of the project or the date a complete permit application is received by the permitting authority for a permit required by this rule. This definition establishes a zero baseline for actual emissions for a new emissions unit for purposes of determining the emissions increase that will result from the initial construction and operation of the unit. Thereafter, for all other purposes, the baseline actual emissions shall equal the unit's potential to emit. Finally, this definition also establishes the baseline actual emissions for a PAL. This definition is consistent with the definition in 40 CFR 51.166(b)(47) and 40 CFR 51.165(a)(1)(xxxv), therefore we propose to approve this definition.

Ohio has modified the definition of “baseline concentration” in OAC 3745-31-01(Q). The definition now follows the language of 40 CFR 51.166(b)(13), therefore we propose to approve this definition.

Ohio has modified the definition of “best available control technology” in OAC 3745-31-01(S). The language “maximum degree of reduction for each air pollutant subject to regulation under the provisions of the CAA” has been replaced with “maximum degree of reduction for each regulated NSR pollutant”. This definition is consistent with the definition in 40 CFR 51.166(b)(12)) and 40 CFR 51.165(a)(1)(xl), therefore we propose to approve this definition.

Ohio has established the definition of “clean unit” in OAC 3745-31-01(Y). This definition is consistent with the definition of “clean unit” in 40 CFR 51.166(b)(41) and 40 CFR 51.165(a)(1)(xxix), therefore we propose to approve this definition.

Ohio has established the definition of “continuous emissions monitoring system” in OAC 3745-31-01(EE). This is consistent with the definition of “continuous emissions monitoring system” in 40 CFR 51.166(b)(43) and 40 CFR 51.165(a)(1)(xxxi), therefore we propose to approve this definition.

Ohio has established the definition of “continuous emissions rate monitoring system” in OAC 3745-31-01(FF). This is consistent with the definition of “continuous emissions rate monitoring system” in 40 CFR 51.166(b)(46) and 40 CFR 51.165(a)(1)(xxxiv), therefore we propose to approve this definition.

Ohio has established the definition of “continuous parameter monitoring system” in OAC 3745-31-01(GG). This is consistent with the definition of “continuous parameter monitoring system” in 40 CFR 51.166(b)(45)) and 40 CFR 51.165(a)(1)(xxxiii), therefore we propose to approve this definition.

Ohio has modified the definition of “emissions unit” in OAC 3745-31-01(MM). This definition is consistent with the definition of “emissions unit” in 40 CFR 51.166(b)(7) and 40 CFR 51.165(a)(1)(vii), therefore we propose to approve this definition.

Ohio has modified the definition of “lowest achievable emission rate” in OAC 3745-31-01(FFF) by replacing “stationary source” with “emissions unit” in the definition from 40 CFR 51.165(a)(1)(xiii). OEPA believes that the term emissions unit is more appropriate than the term stationary source because LAER universally applies at the emissions unit level. OEPA believes that LAER must be determined at the emissions unit level so that similar technologies can be reviewed. OEPA also believes that establishing LAER at the stationary source level may cause overlooking of the fact that a subpart of the stationary source (an emissions unit) may be able to emit at a lower level, even though the stationary source may appear to meet LAER.

This change is consistent with the federal program concerning clean units and PALs where LAER requirements apply. In those instances, LAER is applied at the emissions unit level. Ohio's change eliminates a dual definition of “stationary source” and makes clear that LAER is to be determined at the emissions unit. EPA proposes to approve this definition of LAER.

Ohio has modified the definition of “major modification” in OAC 3745-31-01(III) to add provisions regarding PCPs and PALs. This modification is consistent with 40 CFR 51.166(a)(7) and (b)(2) and 40 CFR 51.165(a)(1)(v), therefore we propose to approve this definition.

Ohio has established the definition of “Major Source Baseline Date” in OAC 3745-31-01(JJJ). This is consistent with the definition in 40 CFR 51.166(b)(14), therefore we propose to approve this definition.

Ohio has modified the definition of “major stationary source” in OAC 3745-31-01(KKK) to replace the phrase “air pollutant subject to regulation under the Clean Air Act including lead compounds but excluding other air pollutants regulated due to being listed under section 112 of the Clean Air Act” with “regulated NSR pollutant.” These modifications are consistent with the definition in 40 CFR 51.166(b)(1) and 40 CFR 51.165(a)(1)(iv), therefore we propose to approve this definition.

Ohio has established the definition of “Major Source Baseline Date” in OAC 3745-31-01(NNN). This is consistent with the definition in 40 CFR 51.166(b)(14), therefore we propose to approve this definition.

Ohio has modified the definition of “net emissions increase” in OAC 3745-31-01(RRR) to add provisions regarding clean units and PCPs and other minor wording changes. These modifications are consistent with the definition in 40 CFR 51.166(b)(3) and 40 CFR 51.165(a)(1)(vi), therefore we propose to approve this definition.

Ohio has established the definition of “new source review project” in OAC 3745-31-01(UUU). This is consistent with the definition in 40 CFR 51.165(a)(1)(xxxix) and 40 CFR 51.166(a)(51), therefore we propose to approve this definition.

Ohio has established the definition of “nonattainment or nonattainment area” in OAC 3745-31-01(VVV). This is consistent with the requirements in 40 CFR 51.165(a)(2)(i), therefore we propose to approve this definition.

Ohio has established the definition of “nonattainment new source review permit” in OAC 3745-31-01(WWW). This is consistent with the definition in 40 CFR 51.165(a)(1)(xxx), therefore we propose to approve this definition.

Ohio has established the definition of “PAL allowable emissions” in OAC 3745-31-01(CCCC). This is consistent with the definition in 40 CFR 51.166(w)(2)(ii) and 40 CFR 51.165(f)(2)(ii), therefore we propose to approve this definition.

Ohio has established the definition of “PAL effective date” in OAC 3745-31-01(DDDD). This is consistent with the definition in 40 CFR 51.166(w)(2)(vi) and 40 CFR 51.165(f)(2)(vi), therefore we propose to approve this definition.

Ohio has established the definition of “PAL effective date” in OAC 3745-31-01(EEEE). This is consistent with the definition in 40 CFR 51.166(w)(2)(vii) and 40 CFR 51.165(f)(2)(vii), therefore we propose to approve this definition.

Ohio has established the definition of “plantwide applicability limit” in OAC 3745-31-01(FFFF). This is consistent with the definition in 40 CFR 51.166(w)(2)(iv) and 40 CFR 51.165(f)(2)(iv), therefore we propose to approve this definition.

Ohio has established the definition of “PAL major modification” in OAC 3745-31-01(GGGG). This is consistent with the definition in 40 CFR 51.166(w)(2)(viii) and 40 CFR 51.165(f)(2)(viii), therefore we propose to approve this definition.

Ohio has established the definition of “PAL permit” in OAC 3745-31-01(HHHH). This is consistent with the definition in 40 CFR 51.166(w)(2)(ix) and 40 CFR 51.165(f)(2)(ix), therefore we propose to approve this definition.

Ohio has established the definition of “PAL pollutant” in OAC 3745-31-01(IIII). This is consistent with the definition in 40 CFR 51.166(w)(2)(x) and 40 CFR 51.165(f)(2)(x), therefore we propose to approve this definition.

Ohio has established the definition of “PAL significant emissions unit” in OAC 3745-31-01(JJJJ). This is consistent with the definition in 40 CFR 51.166(w)(2)(xi) and 40 CFR 51.165(f)(2)(xi), therefore we propose to approve this definition.

Ohio has established the definition of “PAL small emissions unit” in OAC 3745-31-01(KKKK). This is consistent with the definition in 40 CFR 51.166(w)(2)(iii) and 40 CFR 51.165(f)(2)(iii), therefore we propose to approve this definition.

Ohio referred to the definitions for particulate matter and particulate matter emissions from OAC 3745-17-01 which is already approved by EPA.

Ohio has established the definition of “plantwide applicability limit” in OAC 3745-31-01(OOOO). This is consistent with the definition in 40 CFR 51.166(w)(2)(v) and 40 CFR 51.165(f)(2)(v), therefore we propose to approve this definition.

Ohio has established the definitions of “PM10”, “PM10 emissions” and “total suspended particulate” in OAC 3745-31-01(PPPP), (QQQQ), and (UUUUU). These definitions are consistent with 40 CFR 50 and 51, therefore we propose to approve these definitions.

Ohio has modified the definition of “pollution control project” in OAC 3745-31-01(RRRR). This is consistent with the definition in 40 CFR 51.166(b)(31) and 40 CFR 51.165(a)(1)(xxv), therefore we propose to approve this definition.

Ohio has established the definition of “pollution prevention” in OAC 3745-31-01(SSSS). This is consistent with the definition in 40 CFR 51.166(b)(38)) and 40 CFR 51.165(a)(1)(xxvi), therefore we propose to approve this definition.

Ohio has established the definition of “predictive emissions monitoring system” in OAC 3745-31-01(SSSS). This is consistent with the definition in 40 CFR 51.166(b)(44) and 40 CFR 51.165(a)(1)(xxxii), therefore we propose to approve this definition.

Ohio has established the definition of “prevention of significant deterioration increment” in OAC 3745-31-01(WWWW). This is consistent with the definition in 40 CFR 51.166(c), therefore we propose to approve this definition.

Ohio has established the definition of “prevention of significant deterioration permit” in OAC 3745-31-01(XXXX). This is consistent with the definition in 40 CFR 51.166(b)(42) and 40 CFR 51.165(a)(1)(xli), therefore we propose to approve this definition.

Ohio has established the definition of “projected actual emissions” in OAC 3745-31-01(ZZZZ). This is consistent with the definition in 40 CFR 51.166(b)(40) and 40 CFR 51.165(a)(1)(xxviii), therefore we propose to approve this definition.

Ohio has established the definition of “regulated NSR pollutant” in OAC 3745-31-01(DDDDD). This definition is consistent with the definition in 40 CFR 51.166(b)(49) and 40 CFR 51.165(a)(1)(xxxvii), therefore we propose to approve this definition.

Ohio has established the definition of “replacement unit” in OAC 3745-31-01(EEEEE). This definition is consistent with the definition in 40 CFR 51.166(b)(32) and 40 CFR 51.165(a)(1)(xxi), therefore we propose to approve this definition.

Ohio has deleted this definition. It is not required by the federal program.

Ohio has modified the definition of “significant” in OAC 3745-31-01(KKKKK) to change the phrase “an air pollutant subject to regulation under the Clean Air Act” to “a regulated NSR pollutant.” This definition has also been modified to remove the reference to pollutants listed in section 112(b) of the Clean Air Act because section 112(b) pollutants are exempt from NSR. These changes are consistent with the definition in 40 CFR 51.166(b)(23) and 40 CFR 51.165(a)(1)(x), therefore we propose to approve this definition.

Ohio has established the definition of “significant emissions increase” in OAC 3745-31-01(LLLLL). This is consistent with the definition in 40 CFR 51.166(b)(39) and 40 CFR 51.165(a)(1)(xxvii), therefore we propose to approve this definition.

Ohio has modified the definition of “stationary source” in 326 IAC 2-2-1(zz) to change the phrase “pollutant subject to regulation under the CAA” to “regulated NSR pollutant.” This change is consistent with the definition in 40 CFR 51.166(b)(5) and 40 CFR 51.165(a)(1)(i), therefore we propose to approve this definition.

These definitions are associated with future changes to OAC 3745-31-03 relating to Ohio's minor source permitting program. EPA proposes to approve these definitions.

Ohio has made changes to the definitions of “available information,” “baseline area,” “baseline concentration,” “best available technology,” “Clean Air Act,” “Clean Coal Technology,” “Clean Coal Technology Demonstration Project,” “Construction,” “facility,” “non-methane organic compound,” “Non-road engine,” and “Temporary clean coal demonstration project,” that are grammatical in nature and do not change the substance of the definition, therefore we propose to approve this definition.

Ohio has added the Aerometric Information Retrieval System, California Air Resources Board, Chemical Abstract Service, Chemical Rubber Company Handbook for Chemistry and Physics, Compilation of Air Pollutant Emission Factors, AP-42, Control Technology Center, Great Lakes Binational Toxics Strategy, Integrated Risk Management System, and Recommended Policy on Control of Volatile Organic Compounds to OAC 3745-31-01(ZZZZZ)(1). Ohio has removed the reference to the Further Continuing Appropriations Act of 1985 from this section.

Ohio has also updated and added to the incorporations by reference in OAC 3745-31-01(ZZZZZ)(2). Ohio has added references to 40 CFR 51.165; 40 CFR 60.15(b)(1); 40 CFR 60.111b; 40 CFR 81.336; 40 CFR part 50, appendix J; 40 CFR part 51, appendix M; 40 CFR part 51, appendix S; 40 CFR part 53; 40 CFR part 60, appendix A; 40 CFR part 60, subpart Dc; 40 CFR part 82, subpart A; 42 U.S.C. 7401 to 7671q; Chemical Rubber Company Handbook for Chemistry and Physics; Federal Power Act; New Source Performance Standards; Part C of Title I of the Clean Air Act; Part D of Title I of the Clean Air Act; Recommended Policy on Control of Volatile Organic Compounds; Section 2(A) and (B) of the Energy Supply and Environmental Coordination Act of 1974; Section 110 of the Clean Air Act; Section 107(d) of the Clean Air Act; Section 108 of the Clean Air Act; Section 109 of the Clean Air Act; Section 111 of the Clean Air Act; Section 112 of the Clean Air Act; Section 112(b) of the Clean Air Act; Section 112(c) of the Clean Air Act; Section 113 of the Clean Air Act; Section 121(e) of the Clean Air Act; Section 125 of the Clean Air Act; Section 173 of the Clean Air Act, Section 182(c) of the Clean Air Act; Section 182(f) of the Clean Air Act; Section 189 of the Clean Air Act; Section 202 of the Clean Air Act; Section 216 of the Clean Air Act; Section 402(12) of Title IV of the Clean Air Act; Section 409 of the Clean Air Act; Standard Industrial Classification Manual; Title II of the Clean Air Act; Title IV of the Clean Air Act, and Title VI of the Clean Air Act. Ohio has removed from OAC 3745-31-01(ZZZZZ)(2) Title II sec. 101(d) of the Further Continuing Appropriations Act of 1985.

Ohio has modified OAC 3745-31-09(H)(1) to replace the phrase “air contaminant source or modification” with “ nonattainment NSR permit or the PSD permit”. This change is consistent with the changes in definitions required by 40 CFR 51.166(b)(42), 40 CFR 51.165(a)(1)(xxx) and 40 CFR 51.165(a)(1)(xli). Ohio also made a spelling correction in OAC 3745-31-09(H)(2)(d). Therefore we propose to approve this rule.

Ohio has added the source obligations in 40 CFR 51.166 (r). Ohio doesn't include the requirements of 70.4(b)(3)(vii). Ohio also adds the language “if any provision of OAC 3745-31-10 through 3745-31-32 or the application of such provision to any person or circumstance, is held invalid, the remainder of this section, or the application of such provision to persons or circumstances other then those as to which it is held invalid, shall not be affected thereby.” EPA proposes to approve these changes.

Ohio has modified OAC 3745-31-13 (B) and (G) to replace the phrase “air pollutant subject to regulation under the Clean Air Act that the stationary source would emit, except for air pollutants listed under 112 of the Clean Air Act” and “air pollutant subject to regulation under the Clean Air Act” respectively with “regulated NSR pollutant”. This is consistent with 40 CFR 51.166(b)(49) and 40 CFR 51.165(a)(1)(xxxvii). Ohio also modified OAC 3745-31-13(D)(2)(d) by replacing the term “reviewing authority” with “director,” and OAC 3745-31-13(H) by clarifying that the units of measure are μg/m3, and removing mercury, beryllium, and vinyl chloride. This is consistent with 40 CFR 51.166(i). Therefore we propose to approve this rule.

Ohio has modified OAC 3745-31-15(B) to include references to 40 CFR part 63 and OAC 3745-31-1 (C), and (D) to replace the phrase “air pollutant subject to regulation under the Clean Air Act excluding pollutants regulated due to being listed under Section 112 of the Clean Air Act” and “air pollutant subject to regulation under the Clean Air Act” with “regulated NSR pollutant.” This is consistent with 40 CFR 51.166(b)(49) and 40 CFR 51.165(a)(1)(xxxvii). Therefore we propose to approve this rule.

Ohio has modified OAC 3745-31-21 (B) to replace the phrase “air pollutant subject to regulation under the Clean Air Act” with “regulated NSR pollutant”. This is consistent with 40 CFR 51.166(b)(49) and 40 CFR 51.165(a)(1)(xxxvii). Ohio also added language to OAC 3745-31-21 (E) to clarify that projects referenced therein are clean coal technology demonstration projects, and that “Section 111 and Part C” refer to Section 111 and Part C of the Clean Air Act. EPA proposes to approve these changes.

In addition to grammatical updates to OAC 3745-31-22, Ohio has established OAC 3745-31-22(A)(3)(e) and (f) not permitting decreases from actual emissions from the installation of add-on control technology or application of pollution prevention measures and clean units or pollution control projects except as provided by the rule. This language is consistent with 40 CFR 51.165(a)(3)(ii)(H) and (I).

Ohio also established OAC 3745-31-22(A)(3)(g) providing the offset requirements for increased emissions from major modifications. This language is consistent with 40 CFR 51.165(a)(3)(ii)(J). Therefore we propose to approve this rule.

In addition to grammatical updates to OAC 3745-31-24(A), (E) and (H), Ohio has established rules for establishing a baseline for determining credit for emission reductions in OAC 3745-31-24(B) and (C). This language is consistent with 40 CFR 51.165(a)(3)(i) and (ii)(A). Ohio has removed language describing the baseline time period and calculation of baseline emissions which primarily refer to the most recent two year period as the basis for the baseline. The federal program no longer has such a requirement.

Ohio also established OAC 3745-31-24(K) which requires all emission reductions claimed as offset credit to be federally enforceable. This language is consistent with 40 CFR 51.165(a)(3)(ii)(E). Therefore we propose to approve this rule.

Ohio has modified the VOC offset requirement provision in OAC 3745-31-26(A) to include an offset ratio for unclassified areas of greater than 1.0 to 1.0. This language is consistent with section 173(c) of the Clean Air Act. Therefore we propose to approve this rule.

Ohio has added a new rule section for emission units that are subject to BACT or LAER and qualify for a clean unit designation. These rules, for the most part, are consistent with provisions at 40 CFR 51.166(t) and (u) and 40 CFR 51.165(c) and (d) for clean units. However, although Ohio intended only LAER to apply in nonattainment areas, as drafted, OAC 3745-31-30 is not clear that a LAER determination is required for a clean unit designation in an existing nonattainment area. The language in OAC 3745-31-30(A)(5)(a) must also include current-day LAER requirements for non-attainment areas, in addition to BACT for attainment areas.

In a March 2, 2005 letter to EPA, OEPA has committed to clarify its rules in this regard, and, until the rule is clarified, the conditionally approved rules will be implemented as requiring a LAER determination in nonattainment areas in order to obtain a clean unit designation. Therefore we propose to conditionally approve this rule.

OAC 3745-31-31 establishes a pollution control project exclusion provision in Ohio's permit to install regulations. This addition to Ohio's rule is consistent with the requirements in 40 CFR 51.166(v) and 40 CFR 51.165(e). Therefore we propose to approve this rule.

This section of the Ohio permit to install rules regarding PAL applicability is consistent with 40 CFR 51.166(w) and 40 CFR 51.165(f). Therefore we propose to approve this rule.

We are proposing to conditionally approve Ohio's permit to install rules, OAC 3745-31-30. These rules, for the most part, fulfill part C of title I of the CAA by incorporating the critical provisions at 40 CFR 51.165 and 51.166 for clean units. However, although Ohio intended only LAER to apply in nonattainment areas, the proposed language of OAC 3745-31-30 does not make clear that a LAER determination is required for a clean unit designation in an existing nonattainment area. In addition to BACT for attainment areas, the language in OAC 3745-31-30(A)(5)(a) must also include current-day LAER requirements for non-attainment areas.

OEPA has committed, in a March 2, 2005 letter, to clarify its rules in this regard and, in the interim, to require a LAER determination in nonattainment areas in order to obtain a clean unit designation. Because OAC 3745-31-30 meets all requirements of 40 CFR 51.165 and 51.166 for clean units with the exceptions noted above, and because OEPA has committed to correct the deficiencies, we believe that it is appropriate to propose to conditionally approve these rules. Once OEPA submits the rule changes to address these deficiencies, we can take action to fully approve the State Implementation Plan (SIP) revision.

OEPA will have one year from the time that the conditional approval is final to submit the necessary changes to its rules to correct the deficiencies identified in this action. If OEPA does not submit changes within the one year timeframe, this conditional approval will automatically revert to a disapproval of the Ohio SIP.

If OEPA fails to submit the necessary rule changes to us, final conditional approval will automatically convert to a disapproval. EPA would confirm such disapproval to the State by letter. If the SIP becomes disapproved, these commitments will no longer be a part of the approved SIP. We would subsequently publish a notice to this effect in the notice section of the Federal Register indicating that the commitment or commitments have been disapproved and removed from the SIP. If OEPA adopts and submits the final rule amendments to EPA within the applicable time frame, the conditionally approved commitments will remain part of the SIP until the EPA takes final action approving or disapproving the new submittal, those newly approved rules will become part of the SIP.

If after considering the comments on the subsequent submittal, we issue a final disapproval, the sanctions clock under 179(a) will begin. If OEPA does not submit and we do not approve the rule on which any disapproval is based within 18 months of the disapproval, we must impose one of the sanctions under section 179(b) highway funding restrictions or the offset sanction. In addition, any final disapproval would start the 24-month clock for the imposition of section 110(c) Federal Implementation Plan. Finally, under section 110(m) the EPA has discretionary authority to impose sanctions at any time after final disapproval.

EPA is proposing conditional approval of Ohio permit to install revisions. On December 31, 2002, EPA published revisions to the federal PSD and NSR regulations in 40 CFR parts 51 and 52 (67 FR 80186). These “NSR Reform” regulatory revisions became effective on March 3, 2003, and include provisions for baseline emissions determinations, actual-to-future actual methodology, plantwide applicability limits (PALs), clean units, and pollution control projects (PCPs). EPA is proposing to conditionally approve OEPA's revised rules to implement these NSR Reform provisions.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget.

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

This proposed action merely proposes to approve State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

Because this rule proposes to approve pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).

This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (59 FR 22951, November 9, 2000).

This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act.

This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

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

This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

This is a summary of the Commission's Further Notice of Proposed Rulemaking in WC Docket No. 03-225, adopted on March 10, 2005 and released on March 14, 2005. The complete text of this Further Notice of Proposed Rulemaking (FNPRM) is available for public inspection Monday through Thursday from 8 a.m. to 4:30 p.m. and Friday from 8 a.m. to 11:30 a.m. in the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, Room CY-A257, 445 Twelfth Street, SW., Washington, DC 20554. The complete text is also available on the Commission's Internet Site at http://www. fcc.gov. Alternative formats are available to persons with disabilities by contacting Brian Millin at (202) 418-7426 or TTY (202) 418-7365. The complete text of the FNPRM may be purchased from the Commission's duplicating contractor, Best Copying and Printing, Inc., Room CY-B402, 445 Twelfth Street, SW., Washington, DC 20554, telephone (202) 863-2893, facsimile (202) 863-2898, or e-mail at http://www.bcpiweb.com.

1. When the Commission initially adopted a payphone compensation rule pursuant to 47 U.S.C. 276(b)(1)(A), many carriers lacked reliable systems for tracking dial-around calls. In the Commission's First Payphone Report and Order, it ordered compensation to be paid initially on a per-phone, rather than a per-call basis. To arrive at the total per-payphone rate, the Commission calculated that 131 dial-around calls were placed from the average payphone per month. When this average volume amount was multiplied by the then current per-call default rate of $.35, the result yielded a per-phone compensation rate of $45.85 per month.

2. Since the release of the First Payphone Report and Order, approximately 95 percent of all payphones have been connected to Flex ANI, a call-tracking technology that accurately tracks payphone calls from the payphone instrument to the called party. The remaining five per cent of payphones, which are generally located in remote and rural geographic areas are not connected to Flex ANI. With this FNPRM, the Commission continues to implement the requirements of 47 U.S.C. 276 of the Communications Act of 1934, as amended, which directs the Commission to “promote the widespread deployment of payphone services to the benefit of the general public.”

3. Although the Commission recently increased the per-call rate to $.494, it has not updated the average number of dial-around calls per payphone since 1997. The record in this proceeding indicates that since 1998, there has been a significant decline in per-payphone call volumes. If dial-around call volumes have followed the same trend as overall call volumes, the data sought by this FNPRM will probably also have significantly declined.

4. Finally, once the Commission receives the updated volumetric data, it will calculate a new monthly per-payphone rate based on the new data and the existing per-call rate. The new monthly rate will ensure that all payphone service providers are “fairly compensated” for each and every completed intrastate and interstate call using their payphone.

5. This FNPRM contains new information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to take this opportunity to comment on the information collections contained in this FNPRM, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due 60 days after date of publication in the Federal Register. Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

OMB Control Number: 3060-XXXX.

Title: Request to Update Default Compensation Rate for WC Docket No. 03-225 Dial-Around Calls from Payphones.

Form No.: N/A.

Type of Review: New collection.

Respondents: Business or other for-profit institutions.

Estimated Number of Respondents: 10.

Estimated Time Per Response: 100 hours.

Frequency of Response: One time.

Estimated Total Annual Burden: 1000 hours.

Estimated Total Annual Costs: 0.

Privacy Act Impact Assessment: N/A.

Needs and Uses: We seek additional data to enable us to determine a more accurate estimate of the average number of compensable dial-around calls at a payphone. We urge payphone service providers (PSPs) to provide us with current data showing the average number of compensable dial-around calls placed at their payphones. We request that parties submitting data provide details that will enable us to evaluate the data and determine how to use the data. Data submissions should include, if possible, details showing how the data were gathered, how samples were selected, the total number of payphones of each type (e.g., “dumb” vs. “smart,” regional Bell Operating Companies (RBOC) vs. independent) in the sample and in the population from which the sample was taken, and the types of locations represented in the sample. Attempts to gain advantage by failing to provide us with the necessary context to evaluate their submissions will result in their data being discounted or rejected. We invite parties to submit information on the number of payphones that currently are located in non-equal access areas and in areas where small telephone companies have received a waiver of the Flex ANI requirement, and on the average number of compensable dial-around calls originating from such payphones.

6. In addition to filing comments with the Secretary, a copy of any comments on the information collection(s) contained herein should be submitted to Judith Boley Herman, Federal Communications Commission, Room 1-C804, 445 12th Street SW., Washington, DC 20554, or via the Internet to Judith B. Herman@fcc.gov, and to Kristy L. Lalonde, OMB Desk Officer, Room 10234 NEOB, 725 17th Street NW., Washington, DC 20503, or via the Internet to Kristy L. LaLonde@omb.eop.gov.

7. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rule proposed in the FNPRM.

8. With this FNPRM, the Commission continues its implementation of the statutory objectives of section 276 of ensuring payphone service providers are fairly compensation and promoting the widespread deployment of payphones.

9. The Commission's goal in this proceeding is to ensure that all payphone service providers are fairly compensation. Once this proceeding is completed, all payphone operations including those not connected to Flex ANI will be receiving fair compensation for all completed intrastate and interstate calls made from payphones.

10. The legal basis for any action that may be taken pursuant to this FNPRM is contained in sections 1-5, 7, 10, 201-05, 207-09, 214, 218-20, 225-27, 251-54, 256, 271, 303, 332, 403, 405, 502 and 503 of the Communications Act of 1934, as amended, 47 U.S.C. 151-55, 157, 160, 201-05, 207-09, 214, 218-20, 225-27, 251-54, 256, 271, 303, 332, 403, 405, 502, and 503 and sections 1.1, 1.421 of the Commission's rules, 47 CFR 1.1, 1.421.

11. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). 5 U.S.C. 632.

12. In this section, the Commission further describes and estimates the number of small entity licensees and regulatees that may also be indirectly affected by rules adopted pursuant to this FNPRM. The most reliable source of information regarding the total numbers of certain common carrier and related providers nationwide, as well as the number of commercial wireless entities, appears to be the data that the Commission publishes in its Trends in Telephone Service report. The SBA has developed small business size standards for wireline and wireless small businesses within the three commercial census categories of Wired Telecommunications Carriers, Paging, and Cellular and Other Wireless Telecommunications. Under these categories, a business is small if it has 1,500 or fewer employees. Below, using the above size standards and others, the Commission discusses the total estimated numbers of small businesses that might be affected by its actions.

13. Wired Telecommunications Carriers. The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such companies having 1,500 or fewer employees. According to Census Bureau data for 1997, there were 2,225 firms in this category, total, that operated for the entire year. Of this total, 2,201 firms had employment of 999 or fewer employees, and an additional 24 firms had employment of 1,000 employees or more. Thus, under this size standard, the majority of firms can be considered small.

14. Local Exchange Carriers. Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to local exchange services. The closest applicable size standard under SBA rules is for Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 1,310 carriers reported that they were incumbent local exchange service providers. Of these 1,310 carriers, an estimated 1,025 have 1,500 or fewer employees and 285 have more than 1,500 employees. In addition, according to Commission data, 563 companies reported that they were engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 563 companies, an estimated 472 have 1,500 or fewer employees and 91 have more than 1,500 employees. In addition, 37 carriers reported that they were “Other Local Exchange Carriers.” Of the 37 “Other Local Exchange Carriers,” an estimated 36 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that most providers of local exchange service, competitive local exchange service, competitive access providers, and “Other Local Exchange Carriers” are small entities that may be affected by the rules and policies adopted herein.

15. Interexchange Carriers. Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to interexchange services. The closest applicable size standard under SBA rules is for Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 281 companies reported that they were interexchange carriers. Of these 281 companies, an estimated 254 have 1,500 or fewer employees and 27 have more than 1,500 employees. Consequently, the Commission estimates that the majority of interexchange service providers are small entities that may be affected by the rules and policies adopted herein.

16. Wired Telecommunications Carriers. The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such companies having 1,500 or fewer employees. According to Census Bureau data for 1997, there were 2,225 firms in this category, total, that operated for the entire year. Of this total, 2,201 firms had employment of 999 or fewer employees, and an additional 24 firms had employment of 1,000 employees or more. Thus, under this size standard, the majority of firms can be considered small.

17. Incumbent Local Exchange Carriers (LECs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to incumbent local exchange services. The closest applicable size standard under SBA rules is for Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 1,337 carriers reported that they were engaged in the provision of local exchange services. Of these 1,337 carriers, an estimated 1,032 have 1,500 or fewer employees and 305 have more than 1,500 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by the rules and policies adopted herein.

18. Competitive Local Exchange Carriers (CLECs), Competitive Access Providers (CAPs), and “Other Local Exchange Carriers.” Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to providers of competitive exchange services or to competitive access providers or to “Other Local Exchange Carriers,” all of which are discrete categories under which TRS data are collected. The closest applicable size standard under SBA rules is for Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 609 companies reported that they were engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 609 companies, an estimated 458 have 1,500 or fewer employees and 151 have more than 1,500 employees. In addition, 35 carriers reported that they were “Other Local Service Providers.” Of the 35 “Other Local Service Providers,” an estimated 34 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, and “Other Local Exchange Carriers” are small entities that may be affected by the rules and policies adopted herein.

19. Interexchange Carriers (IXCs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to interexchange services. The closest applicable size standard under SBA rules is for Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 261 companies reported that their primary telecommunications service activity was the provision of interexchange services. Of these 261 companies, an estimated 223 have 1,500 or fewer employees and 38 have more than 1,500 employees. Consequently, the Commission estimates that the majority of interexchange service providers are small entities that may be affected by the rules and policies adopted herein.

20. Operator Service Providers (OSPs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to operator service providers. The closest applicable size standard under SBA rules is for Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 23 companies reported that they were engaged in the provision of operator services. Of these 23 companies, an estimated 22 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that the majority of operator service providers are small entities that may be affected by the rules and policies adopted herein.

21. Payphone Service Providers (PSPs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to payphone service providers. The closest applicable size standard under SBA rules is for Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 761 companies reported that they were engaged in the provision of payphone services. Of these 761 companies, an estimated 757 have 1,500 or fewer employees and four have more than 1,500 employees. Consequently, the Commission estimates that the majority of payphone service providers are small entities that may be affected by the rules and policies adopted herein.

22. Prepaid Calling Card Providers. The SBA has developed a size standard for a small business within the category of Telecommunications Resellers. Under that SBA size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 37 companies reported that they were engaged in the provision of prepaid calling cards. Of these 37 companies, an estimated 36 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that the majority of prepaid calling card providers are small entities that may be affected by the rules and policies adopted herein.

23. Local Resellers. The SBA has developed a small business size standard for the category of Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 133 carriers have reported that they are engaged in the provision of local resale services. Of these, an estimated 127 have 1,500 or fewer employees and six have more than 1,500 employees. Consequently, the Commission estimates that the majority of local resellers are small entities that may be affected by its action.

24. Toll Resellers. The SBA has developed a small business size standard for the category of Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 625 carriers have reported that they are engaged in the provision of toll resale services. Of these, an estimated 590 have 1,500 or fewer employees and 35 have more than 1,500 employees. Consequently, the Commission estimates that the majority of toll resellers are small entities that may be affected by its action.

25. Other Toll Carriers. Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to “Other Toll Carriers.” This category includes toll carriers that do not fall within the categories of interexchange carriers, operator service providers, prepaid calling card providers, satellite service carriers, or toll resellers. The closest applicable size standard under SBA rules is for Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission's data, 92 companies reported that their primary telecommunications service activity was the provision of other toll carriage. Of these 92 companies, an estimated 82 have 1,500 or fewer employees and ten have more than 1,500 employees. Consequently, the Commission estimates that most “Other Toll Carriers” are small entities that may be affected by the rules and policies adopted herein.

26. Paging. The SBA has developed a small business size standard for Paging, which consists of all such firms having 1,500 or fewer employees. According to Census Bureau data for 1997, in this category there was a total of 1,320 firms that operated for the entire year. Of this total, 1,303 firms had employment of 999 or fewer employees, and an additional seventeen firms had employment of 1,000 employees or more. Thus, under this size standard, the majority of firms can be considered small.

27. Cellular and Other Wireless Telecommunications. The SBA has developed a small business size standard for Cellular and Other Wireless Telecommunication, which consists of all such firms having 1,500 or fewer employees. According to Census Bureau data for 1997, in this category there was a total of 977 firms that operated for the entire year. Of this total, 965 firms had employment of 999 or fewer employees, and an additional twelve firms had employment of 1,000 employees or more. Thus, under this size standard, the majority of firms can be considered small.

28. Broadband Personal Communications Service. The broadband Personal Communications Service (PCS) spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission defined “small entity” for Blocks C and F as an entity that has average gross revenues of $40 million or less in the three previous calendar years. For Block F, an additional classification for “very small business” was added and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. These standards defining “small entity” in the context of broadband PCS auctions have been approved by the SBA. No small businesses, within the SBA-approved small business size standards bid successfully for licenses in Blocks A and B. There were 90 winning bidders that qualified as small entities in the Block C auctions. A total of 93 small and very small business bidders won approximately 40 percent of the 1,479 licenses for Blocks D, E, and F. On March 23, 1999, the Commission re-auctioned 347 C, D, E, and F Block licenses. There were 48 small business winning bidders. On January 26, 2001, the Commission completed the auction of 422 C and F Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in this auction, 29 qualified as “small” or “very small” businesses. Based on this information, the Commission concludes that the number of small broadband PCS licenses will include the 90 winning C Block bidders, the 93 qualifying bidders in the D, E, and F Block auctions, the 48 winning bidders in the 1999 re-auction, and the 29 winning bidders in the 2001 re-auction, for a total of 260 small entity broadband PCS providers, as defined by the SBA small business size standards and the Commission's auction rules. The Commission notes that, as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Also, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated.

29. Narrowband Personal Communications Services. The Commission has adopted a two-tiered small business size standard in the Narrowband PCS Second Report and Order, 65 FR 35875, June 6, 2000. A “small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $40 million. A “very small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $15 million. The SBA has approved these small business size standards. In the future, the Commission will auction 459 licenses to serve Metropolitan Trading Areas (MTAs) and 408 response channel licenses. There is also one megahertz of narrowband PCS spectrum that has been held in reserve and that the Commission has not yet decided to release for licensing. The Commission cannot predict accurately the number of licenses that will be awarded to small entities in future actions. However, four of the 16 winning bidders in the two previous narrowband PCS auctions were small businesses, as that term was defined under the Commission's Rules. The Commission assumes, for purposes of this analysis, that a large portion of the remaining narrowband PCS licenses will be awarded to small entities. The Commission also assumes that at least some small businesses will acquire narrowband PCS licenses by means of the Commission's partitioning and disaggregation rules.

30. 220 MHz Radio Service—Phase I Licensees. The 220 MHz service has both Phase I and Phase II licenses. Phase I licensing was conducted by lotteries in 1992 and 1993. There are approximately 1,515 such non-nationwide licensees and four nationwide licensees currently authorized to operate in the 220 MHz band. The Commission has not developed a small business size standard for small entities specifically applicable to such incumbent 220 MHz Phase I licensees. To estimate the number of such licensees that are small businesses, the Commission applies the small business size standard under the SBA rules applicable to “Cellular and Other Wireless Telecommunications” companies. This standard provides that such a company is small if it employs no more than 1,500 persons. According to Census Bureau data for 1997, there were 977 firms in this category, total, that operated for the entire year. Of this total, 965 firms had employment of 999 or fewer employees, and an additional 12 firms had employment of 1,000 employees or more. If this general ratio continues in the context of Phase I 220 MHz licensees, the Commission estimates that nearly all such licensees are small businesses under the SBA's small business size standard.

31. 220 MHz Radio Service—Phase II Licensees. The 220 MHz service has both Phase I and Phase II licenses. The Phase II 220 MHz service is a new service, and is subject to spectrum auctions. In the 220 MHz Third Report and Order, 62 FR 15978, April 3, 1997, the Commission adopted a small business size standard for “small” and “very small” businesses for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. This small business size standard indicates that a “small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. A “very small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues that do not exceed $3 million for the preceding three years. The SBA has approved these small business size standards. Auctions of Phase II licenses commenced on September 15, 1998, and closed on October 22, 1998. In the first auction, 908 licenses were auctioned in three different-sized geographic areas: three nationwide licenses, 30 Regional Economic Area Group (EAG) Licenses, and 875 Economic Area (EA) Licenses. Of the 908 licenses auctioned, 693 were sold. Thirty-nine small businesses won licenses in the first 220 MHz auction. The second auction included 225 licenses: 216 EA licenses and 9 EAG licenses. Fourteen companies claiming small business status won 158 licenses.

32. 800 MHz and 900 MHz Specialized Mobile Radio Licenses. The Commission awards “small entity” and “very small entity” bidding credits in auctions for Specialized Mobile Radio (SMR) geographic area licenses in the 900 MHz bands to firms that had revenues of no more than $15 million in each of the three previous calendar years, or that had revenues of no more than $3 million in each of the previous calendar years. The SBA has approved these size standards. The Commission awards “small entity” and “very small entity” bidding credits in auctions for Specialized Mobile Radio (SMR) geographic area licenses in the 800 MHz bands to firms that had revenues of no more than $40 million in each of the three previous calendar years, or that had revenues of no more than $15 million in each of the previous calendar years. These bidding credits apply to SMR providers in the 800 MHz and 900 MHz bands that either hold geographic area licenses or have obtained extended implementation authorizations. The Commission does not know how many firms provide 800 MHz or 900 MHz geographic area SMR service pursuant to extended implementation authorizations, nor how many of these providers have annual revenues of no more than $15 million. One firm has over $15 million in revenues. The Commission assumes, for purposes here, that all of the remaining existing extended implementation authorizations are held by small entities, as that term is defined by the SBA. The Commission has held auctions for geographic area licenses in the 800 MHz and 900 MHz SMR bands. There were 60 winning bidders that qualified as small or very small entities in the 900 MHz SMR auctions. Of the 1,020 licenses won in the 900 MHz auction, bidders qualifying as small or very small entities won 263 licenses. In the 800 MHz auction, 38 of the 524 licenses won were won by small and very small entities. The Commission notes that, as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Also, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated.

33. Private and Common Carrier Paging. In the Paging Third Report and Order, 62 FR 16004, April 3, 1997, the Commission developed a small business size standard for “small businesses” and “very small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. A “small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. Additionally, a “very small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $3 million for the preceding three years. The SBA has approved these size standards. An auction of Metropolitan Economic Area licenses commenced on February 24, 2000, and closed on March 2, 2000. Of the 985 licenses auctioned, 440 were sold. Fifty-seven companies claiming small business status won. At present, there are approximately 24,000 Private-Paging site-specific licenses and 74,000 Common Carrier Paging licenses. According to the most recent Trends in Telephone Service, 471 carriers reported that they were engaged in the provision of either paging and messaging services or other mobile services. Of those, the Commission estimates that 450 are small, under the SBA business size standard specifying that firms are small if they have 1,500 or fewer employees.

34. 700 MHz Guard Band Licensees. In the 700 MHz Guard Band Order, 65 FR 3139, January 20, 2000, the Commission adopted a small business size standard for “small businesses” and “very small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. A “small business” as an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. Additionally, a “very small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $3 million for the preceding three years. An auction of 52 Major Economic Area (MEA) licenses commenced on September 6, 2000, and closed on September 21, 2000. Of the 104 licenses auctioned, 96 licenses were sold to nine bidders. Five of these bidders were small businesses that won a total of 26 licenses. A second auction of 700 MHz Guard Band licenses commenced on February 13, 2001 and closed on February 21, 2001. All eight of the licenses auctioned were sold to three bidders. One of these bidders was a small business that won a total of two licenses.

35. Rural Radiotelephone Service. The Commission has not adopted a size standard for small businesses specific to the Rural Radiotelephone Service. A significant subset of the Rural Radiotelephone Service is the Basic Exchange Telephone Radio System (BETRS). The Commission uses the SBA's small business size standard applicable to “Cellular and Other Wireless Telecommunications,” i.e., an entity employing no more than 1,500 persons. There are approximately 1,000 licensees in the Rural Radiotelephone Service, and the Commission estimates that there are 1,000 or fewer small entity licensees in the Rural Radiotelephone Service that may be affected by the rules and policies adopted herein.

36. Air-Ground Radiotelephone Service. The Commission has not adopted a small business size standard specific to the Air-Ground Radiotelephone Service. The Commission will use SBA's small business size standard applicable to “Cellular and Other Wireless Telecommunications,” i.e., an entity employing no more than 1,500 persons. There are approximately 100 licensees in the Air-Ground Radiotelephone Service, and the Commission estimates that almost all of them qualify as small under the SBA small business size standard.

37. Aviation and Marine Radio Services. Small businesses in the aviation and marine radio services use a very high frequency (VHF) marine or aircraft radio and, as appropriate, an emergency position-indicating radio beacon (and/or radar) or an emergency locator transmitter. The Commission has not developed a small business size standard specifically applicable to these small businesses. For purposes of this analysis, the Commission uses the SBA small business size standard for the category “Cellular and Other Telecommunications,” which is 1,500 or fewer employees. Most applicants for recreational licenses are individuals. Approximately 581,000 ship station licensees and 131,000 aircraft station licensees operate domestically and are not subject to the radio carriage requirements of any statute or treaty. For purposes of evaluations in this analysis, the Commission estimates that there are up to approximately 712,000 licensees that are small businesses (or individuals) under the SBA standard. In addition, between December 3, 1998 and December 14, 1998, the Commission held an auction of 42 VHF Public Coast licenses in the 157.1875-157.4500 MHz (ship transmit) and 161.775-162.0125 MHz (coast transmit) bands. For purposes of the auction, the Commission defined a “small” business as an entity that, together with controlling interests and affiliates, has average gross revenues for the preceding three years not to exceed $15 million. In addition, a “very small” business is one that, together with controlling interests and affiliates, has average gross revenues for the preceding three years not to exceed $3 million. There are approximately 10,672 licensees in the Marine Coast Service, and the Commission estimates that almost all of them qualify as “small” businesses under the above special small business size standards.

38. Fixed Microwave Services. Fixed microwave services include common carrier, private operational-fixed, and broadcast auxiliary radio services. At present, there are approximately 22,015 common carrier fixed licensees and 61,670 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services. The Commission has not created a size standard for a small business specifically with respect to fixed microwave services. For purposes of this analysis, the Commission uses the SBA small business size standard for the category “Cellular and Other Telecommunications,” which is 1,500 or fewer employees. The Commission does not have data specifying the number of these licensees that have more than 1,500 employees, and thus is unable at this time to estimate with greater precision the number of fixed microwave service licensees that would qualify as small business concerns under the SBA's small business size standard. Consequently, the Commission estimates that there are up to 22,015 common carrier fixed licensees and up to 61,670 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services that may be small and may be affected by the rules and policies adopted herein. The Commission noted, however, that the common carrier microwave fixed licensee category includes some large entities.

39. Offshore Radiotelephone Service. This service operates on several UHF television broadcast channels that are not used for television broadcasting in the coastal areas of states bordering the Gulf of Mexico. There are presently approximately 55 licensees in this service. The Commission is unable to estimate at this time the number of licensees that would qualify as small under the SBA's small business size standard for “Cellular and Other Wireless Telecommunications” services. Under that SBA small business size standard, a business is small if it has 1,500 or fewer employees.

40. Wireless Communications Services. This service can be used for fixed, mobile, radiolocation, and digital audio broadcasting satellite uses. The Commission established small business size standards for the wireless communications services (WCS) auction. A “small business” is an entity with average gross revenues of $40 million for each of the three preceding years, and a “very small business” is an entity with average gross revenues of $15 million for each of the three preceding years. The SBA has approved these small business size standards. The Commission auctioned geographic area licenses in the WCS service. In the auction, there were seven winning bidders that qualified as “very small business” entities, and one that qualified as a “small business” entity. The Commission concludes that the number of geographic area WCS licensees affected by this analysis includes these eight entities.

41. 39 GHz Service. The Commission created a special small business size standard for 39 GHz licenses—an entity that has average gross revenues of $40 million or less in the three previous calendar years. An additional size standard for “very small business” is: An entity that, together with affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. The SBA has approved these small business size standards. The auction of the 2,173 39 GHz licenses began on April 12, 2000 and closed on May 8, 2000. The 18 bidders who claimed small business status won 849 licenses. Consequently, the Commission estimates that 18 or fewer 39 GHz licensees are small entities that may be affected by the rules and policies adopted herein.

42. Local Multipoint Distribution Service. Local Multipoint Distribution Service (LMDS) is a fixed broadband point-to-multipoint microwave service that provides for two-way video telecommunications. The auction of the 1,030 Local Multipoint Distribution Service (LMDS) licenses began on February 18, 1998 and closed on March 25, 1998. The Commission established a small business size standard for LMDS licenses as an entity that has average gross revenues of less than $40 million in the three previous calendar years. An additional small business size standard for “very small business” was added as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. The SBA has approved these small business size standards in the context of LMDS auctions. There were 93 winning bidders that qualified as small entities in the LMDS auctions. A total of 93 small and very small business bidders won approximately 277 A Block licenses and 387 B Block licenses. On March 27, 1999, the Commission re-auctioned 161 licenses; there were 40 winning bidders. Based on this information, the Commission concluded that the number of small LMDS licenses consists of the 93 winning bidders in the first auction and the 40 winning bidders in the re-auction, for a total of 133 small entity LMDS providers.

43. 218-219 MHz Service. The first auction of 218-219 MHz spectrum resulted in 170 entities winning licenses for 594 Metropolitan Statistical Area licenses. Of the 594 licenses, 557 were won by entities qualifying as a small business. For that auction, the small business size standard was an entity that, together with its affiliates, has no more than a $6 million net worth and, after federal income taxes (excluding any carry over losses), has no more than $2 million in annual profits each year for the previous two years. In the 218-219 MHz Report and Order and Memorandum Opinion and Order, 64 FR 59656, November 3, 1999, the Commission established a small business size standard for a “small business” as an entity that, together with its affiliates and persons or entities that hold interests in such an entity and their affiliates, has average annual gross revenues not to exceed $15 million for the preceding three years. A “very small business” is defined as an entity that, together with its affiliates and persons or entities that hold interests in such an entity and its affiliates, has average annual gross revenues not to exceed $3 million for the preceding three years. The SBA has approved these size standards. The Commission cannot estimate, however, the number of licenses that will be won by entities qualifying as small or very small businesses under its rules in future auctions of 218-219 MHz spectrum.

44. 24 GHz—Incumbent Licensees. This analysis may affect incumbent licensees who were relocated to the 24 GHz band from the 18 GHz band, and applicants who wish to provide services in the 24 GHz band. The applicable SBA small business size standard is that of “Cellular and Other Wireless Telecommunications” companies. This category provides that such a company is small if it employs no more than 1,500 persons. According to Census Bureau data for 1997, there were 977 firms in this category that operated for the entire year. Of this total, 965 firms had employment of 999 or fewer employees, and an additional 12 firms had employment of 1,000 employees or more. Thus, under this size standard, the great majority of firms can be considered small. These broader census data notwithstanding, the Commission believes that there are only two licensees in the 24 GHz band that were relocated from the 18 GHz band, Teligent and TRW, Inc. It is the Commission's understanding that Teligent and its related companies have less than 1,500 employees, though this may change in the future. TRW is not a small entity. Thus, only one incumbent licensee in the 24 GHz band is a small business entity.

45. 24 GHz—Future Licensees. With respect to new applicants in the 24 GHz band, the small business size standard for “small business” is an entity that, together with controlling interests and affiliates, has average annual gross revenues for the three preceding years not in excess of $15 million. “Very small business” in the 24 GHz band is an entity that, together with controlling interests and affiliates, has average gross revenues not exceeding $3 million for the preceding three years. The SBA has approved these small business size standards. These size standards will apply to the future auction, if held.

46. Satellite Service Carriers. The SBA has developed a size standard for small businesses within the category of Satellite Telecommunications. Under that SBA size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 31 carriers reported that they were engaged in the provision of satellite services. Of these 31 carriers, an estimated 25 have 1,500 or fewer employees and six, alone or in combination with affiliates, have more than 1,500 employees. Consequently, the Commission estimates that there are 31 or fewer satellite service carriers which are small businesses that may be affected by the rules and policies proposed herein.

47. Cable and Other Program Distribution. This category includes cable systems operators, closed circuit television services, direct broadcast satellite services, multipoint distribution systems, satellite master antenna systems, and subscription television services. The SBA has developed small business size standard for this census category, which includes all such companies generating $12.5 million or less in revenue annually. According to Census Bureau data for 1997, there were a total of 1,311 firms in this category, total, that had operated for the entire year. Of this total, 1,180 firms had annual receipts of under $10 million and an additional 52 firms had receipts of $10 million or more but less than $25 million. Consequently, the Commission estimates that the majority of providers in this service category are small businesses that may be affected by the rules and policies adopted herein.

48. Internet Service Providers. The SBA has developed a small business size standard for Internet Service Providers (ISPs). ISPs “provide clients access to the Internet and generally provide related services such as web hosting, web page designing, and hardware or software consulting related to Internet connectivity.” Under the SBA size standard, such a business is small if it has average annual receipts of $21 million or less. According to Census Bureau data for 1997, there were 2,751 firms in this category that operated for the entire year. Of these, 2,659 firms had annual receipts of under $10 million, and an additional 67 firms had receipts of between $10 million and $24, 999,999. Consequently, the Commission estimates that the majority of these firms are small entities that may be affected by its action.

49. All Other Information Services. This industry comprises establishments primarily engaged in providing other information services (except new syndicates and libraries and archives).” The Commission notes that, in this FNPRM, it has described activities such as email, online gaming, web browsing, video conferencing, instant messaging, and other, similar IP-enabled services. The SBA has developed a small business size standard for this category; that size standard is $6 million or less in average annual receipts. According to Census Bureau data for 1997, there were 195 firms in this category that operated for the entire year. Of these, 172 had annual receipts of under $5 million, and an additional nine firms had receipts of between $5 million and $9,999,999. Consequently, the Commission estimates that the majority of these firms are small entities that may be affected by its action.

50. This supplemental IRFA seeks current and accurate monthly data on the average number of compensable dial-around calls per-payphone. Once the new data is collected, the new rate will not impose any new reporting, recordkeeping or other compliance requirements for small entities.

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

52. In this FNPRM, the Commission only seeks to collect current and accurate data on the average number of compensable dial-around calls per-payphone. Nevertheless, the Commission seeks comments on alternatives that will minimize any potential burdens caused by the need to collect current and accurate monthly per-payphone data.

53. Implementation of the rule change the Commission is considering in this FNPRM will require updating the monthly per-payphone rate that will be established once a current and accurate average number of compensable dial-around calls is determined. The section of the Commission's rules that will likely be amended is 47 CFR 64.1301.

54. Pursuant to sections 1.415 and 1.419 of the Commission's rules, interested parties may file comments on or before June 27, 2005, and reply comments on or before July 25, 2005. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. Comments filed through the ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/cgb/ecfs/. Generally, only one copy of an electronic submission must be filed. If multiple docket or rulemaking numbers appear in the caption of the proceeding, commenters must transmit one electronic copy of the comments to each docket or rulemaking number referenced in the caption. In completing the transmittal screen, commenters should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number, in this case, WC Docket No. 03-225. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov, and should include the following words in the body of the message, “get form.” A sample form and directions will be sent in reply. Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, commenters must submit two additional copies for each additional docket or rulemaking number.

55. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although the Commission continues to experience delays in receiving U.S. Postal Service mail). Parties are strongly encouraged to file comments electronically using the Commission's ECFS.

56. The Commission's contractor, Natek, Inc., will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002.

57. All filings must be addressed to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. Parties should also send a copy of their filings to Victoria Goldberg, Pricing Policy Division, Wireline Competition Bureau, Federal Communications Commission, Room 5-A266, 445 12th Street, SW., Washington, DC 20554, or by e-mail to victoria.goldberg@fcc.gov. Parties shall also serve one copy with the Commission's copy contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, (202) 488-5300, or via e-mail to fcc@bcpiweb.com.

58. Documents in WC Docket No. 03-225 are available for public inspection and copying during business hours at the FCC Reference Information Center, Portals II, 445 12th St. SW., Room CY-A257, Washington, DC 20554. The documents may also be purchased from BCPI, telephone (202) 488-5300, facsimile (202) 488-5563, TTY (202) 488-5562, e-mail fcc@bcpiweb.com.

59. Accordingly, it is ordered that, pursuant to the authority contained in sections 1-5, 7, 10, 201-05, 207-09, 214, 218-20, 225-27, 251-54, 256, 271, 303, 332, 403, 405, 502 and 503 of the Communications Act of 1934, as amended, 47 U.S.C. 151-155, 157, 160, 201-05, 207-09, 214, 218-20, 225-27, 251-54, 256, 271, 303, 332, 403, 405, 502, and 503 and sections 1.1, 1.421 of the Commission's rules, 47 CFR 1.1, 1.421, notice is hereby given of the rulemaking and comment is sought on those issues.

60. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Further Notice of Proposed Rulemaking, including the Supplemental Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 64 as follows:

This is a synopsis of the Commission's Report and Order, MB Docket No. 04-317, adopted April 25, 2005, and released April 27, 2005. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20054, telephone 1-800-378-3160 or http://www.BCPIWEB.com. This document is not subject to the Congressional Review Act. (The Commission, is, therefore, not required to submit a copy of this Report and Order to GAO, pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A) because the proposed rule was dismissed.

This is a summary of the Commission's Notice of Proposed Rule Making, MB Docket No. 05-177, adopted April 25, 2005, and released April 27, 2005. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center 445 Twelfth Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington DC 20054, telephone 1-800-378-3160 or http://www.BCPIWEB.com. This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

The FM Table of Allotments lists Channel 281A in lieu of Channel 265A at Bairoil, Wyoming. Channel 281A was inadvertently added to Bairoil. See 65 FR 45720, published July 25, 2000.

Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contact.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

This is a synopsis of the Commission's Report and Order, MB Docket No. 02-289, adopted April 25, 2005, and released April 27, 2005. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20054, telephone 1-800-378-3160 or http://www.BCPIWEB.com. This document is not subject to the Congressional Review Act. (The Commission, is, therefore, not required to submit a copy of this Report and Order to GAO, pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A) because the proposed rule was dismissed.

This is a synopsis of the Commission's Report and Order, MB Docket No. 04-331, adopted April 25, 2005, and released April 27, 2005. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or http://www.BCPIWEB.com. This document is not subject to the Congressional Review Act. (The Commission is, therefore, not required to submit a copy of this Report and Order to GAO pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), because the proposed rule is dismissed.)

This is a synopsis of the Commission's Report and Order, MB Docket No. 04-362, adopted April 25, 2005 and released April 27, 2005. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW., Washington, DC. This document may also be purchased from the Commission's duplicating contractors, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or http://www.BCPIWEB.com.

This document is not subject to the Congressional Review Act. (The Commission, is, therefore, not required to submit a copy of this Report and Order to the Government Accountability Office, pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), because the proposed rule was dismissed.)

We intend to make any final action resulting from this proposed rule to be as accurate and as effective as possible. Therefore, we are soliciting comments from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule. We particularly seek comments concerning:

1. The reasons why Gila trout should or should not be reclassified with a special rule, as provided by section 4 of the Act;

2. Information concerning angling opportunities that may be affected by this action in New Mexico or Arizona and how the special rule might affect these uses; and

3. Comments on how the special rule could further the conservation of the Gila trout beyond what we have discussed in this rule.

The purposes of the Act are to provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved and to provide a program for the conservation of those species. Species can be listed as threatened and endangered because of any of the following factors: (1) The present or threatened destruction, modification, or curtailment of its habitat or range, (2) overutilization for commercial, recreational, scientific, or educational purposes, (3) disease or predation, (4) the inadequacy of existing regulatory mechanisms, and (5) other natural or manmade factors affecting its continued existence. When we determine that protection of the species under the Act is no longer warranted, we take steps to remove (delist) the species from the Federal list. If a species is listed as endangered, we may reclassify it to threatened status as an intermediate step before eventual delisting, if it has met the criteria for downlisting to threatened; however, reclassification to threatened status is not required in order to delist.

Section 3 of the Act defines terms that are relevant to this proposal. An endangered species is any species that is in danger of extinction throughout all or a significant portion of its range. A threatened species is any species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. A species includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife that interbreeds when mature.

The Gila trout was originally recognized as endangered under the Federal Endangered Species Preservation Act of 1966 (32 FR 4001), and Federal designation of the species as endangered continued under the Act (1973). In 1987, the Service proposed to reclassify the Gila trout as threatened (October 6, 1987, 52 FR 37424). However, we withdrew our proposal for reclassification in 1991 (September 12, 1991) (see “Recovery Plans and Accomplishments” section below for further information). On November 11, 1996, Mr. Gerald Burton submitted a petition to us to downlist the species from endangered to threatened. We acknowledged receipt of the petition by letter on January 13, 1997. This proposed rule constitutes our 90-day finding and 12-month finding on the November 11, 1996, petition.

The Gila trout is a member of the salmon and trout family (Salmonidae). Gila trout was not formally described until 1950, using fish collected in Main Diamond Creek in 1939 (Miller 1950). It is most closely related to Apache trout (Oncorhynchus apache), which is endemic to the upper Salt and Little Colorado River drainages in east-central Arizona. Gila trout and Apache trout are more closely related to rainbow trout (O. mykiss) than to cutthroat trout (O. clarki), suggesting that Gila and Apache trouts were derived from an ancestral form that also gave rise to rainbow trout (Behnke 1992; Dowling and Childs 1992; Utter and Allendorf 1994; Nielsen et al. 1998; Riddle et al. 1998).

The Gila trout is readily identified by its iridescent gold sides that blend to a darker shade of copper on the opercles (gill covers). Spots on the body are small and profuse, generally occurring above the lateral line and extending onto the head, dorsal (back, top) fin, and caudal (tail) fin. Spots are irregularly shaped on the sides and increase in size on the back. On the dorsal surface of the body, spots may be as large as the pupil of the fish eye and are rounded. A few scattered spots are sometimes present on the anal fin, and the adipose fin (fleshy fin located behind dorsal fin) is typically large and well-spotted. Dorsal, pelvic, and anal fins have a white to yellowish tip that may extend along the leading edge of the pelvic fins. A faint, salmon-pink band is present on adults, particularly during spawning season when the normally white belly may be streaked yellow or reddish orange. A yellow cutthroat mark is present on most mature specimens. Parr marks (diffuse splotches on the sides of body, usually seen on young trout) are commonly retained by adults, although they may be faint or absent (Miller 1950; David 1976).

Characteristics that distinguish Gila trout from other co-occurring, non-native trout include the golden coloration of the body, parr marks, and fine, profuse spots above the lateral line. These characters differentiate Gila trout from rainbow, brown (Salmo trutta), and cutthroat trouts. Roundtail chub (Gila robusta) are locally confused with Gila trout (Minckley 1973). The two species share a similar distribution, although roundtail chub typically occurs at lower elevations than Gila trout currently occupies. The two species may be confused partly because roundtail chub are occasionally caught by anglers fishing where both species occur together. The roundtail chub, a minnow (family Cyprinidae) whose adult size is similar to Gila trout's, differs from Gila trout (family Salmonidae) by its body shape and coloration. The roundtail chub lacks an adipose fin and has a narrow caudal peduncle (the segment of the body to which the tail fin is attached). Also, roundtail chub lack parr marks, golden coloration, yellow cutthroat marks, and salmon-pink band found on Gila trout. Roundtail chub are typically a mottled olive or dark silver color above the lateral line, and body coloration lightens to a light silvery hue below the lateral line (Sublette et al. 1990).

The extent of the historical distribution of the Gila trout is not known with certainty (Behnke 2002). It is known to be native to higher elevation streams in portions of the Gila River drainage, New Mexico. According to anecdotal reports, in 1896 Gila trout were found in the Gila River drainage, New Mexico, from the headwaters downstream to a box canyon, about 11.3 km (7 mi) northeast of Cliff, New Mexico (Miller 1950). By 1915, the downstream distribution of Gila trout in the Gila River had receded upstream to Sapillo Creek, a distance of approximately 25 km (15 mi) (Miller 1950). By 1950, water temperature in the Gila River at Sapillo Creek was considered too warm to support any trout species (Miller 1950). The earliest documented collections of Gila trout in the upper Gila River drainage were in 1939, from Main Diamond Creek (Miller 1950). New populations were sporadically found until 1992 when Gila trout were discovered in Whiskey Creek, a tributary to the upper West Fork Gila River (Service 2003).

Miller (1950) documented changes in suitability of habitats for Gila trout in the upper Gila drainage. Unregulated livestock grazing and logging likely contributed to habitat modifications noted by Miller (1950). The historical occurrence of intensive grazing and resulting effects on the land (e.g., increased sedimentation by removal of riparian vegetation and increased runoff rates due to soil compaction) are indicated in published reports dating back to the early 1900s (Rixon 1905; Rich 1911; Duce 1918; Leopold 1921; Leopold 1924). Logging activities also likely caused major changes in watershed characteristics and stream morphology. Rixon (1905) reported the occurrence of small timber mills in numerous canyons of the upper Gila River drainage. Early logging efforts were concentrated along canyon bottoms, often with perennial streams. Tree removal along perennial streams within the historical range of Gila trout likely altered water temperature regimes, sediment loading, bank stability, and availability of large woody debris (Chamberlin et al. 1991).

When the Gila trout was listed as endangered, it was thought that its range had been reduced to five streams within the Gila National Forest, New Mexico: Iron, McKenna, Spruce, Main Diamond, and South Diamond. In 1998, it was determined that the McKenna and Iron Creek populations had hybridized with rainbow trout and therefore, did not contribute to the recovery of the species because they are not pure (Leary and Allendorf 1998; Service 2003). In 1992, another original pure population (i.e., relict population) of Gila trout was discovered in Whiskey Creek (Leary and Allendorf 1998). Consequently, there are four confirmed original pure populations known today. Reasons for listing the Gila trout as endangered included hybridization, competition, and/or predation by non-native rainbow, cutthroat, and brown trout, and habitat degradation.

Occurrence of Gila trout in tributaries to the Gila River in Arizona is less certain, although these streams harbored a native trout. Native trout occurred in the Eagle Creek drainage, a tributary of the Gila River in Arizona located west of the San Francisco River drainage (Minckley 1973; Kynard 1976). The identity of this native trout, now lost through hybridization with rainbow trout, is uncertain (Marsh et al. 1990). Native trout were reported from Oak Creek, a tributary to the Verde River, before the turn of the century (Miller 1950). Four specimens collected from Oak Creek before 1890 were ascribed to Gila trout (Miller 1950; Minckley 1973). Native trout were also reported from West Clear Creek, another Verde River tributary (Miller 1950). Trout collected in 1975 from Sycamore Creek, a tributary of Agua Fria, were reported to be Gila x rainbow trout hybrids. However, this determination was based solely on examination of spotting pattern (Behnke and Zarn 1976). Unfortunately, no pure Gila trout are extant from Arizona tributaries to the Gila River and scientists are unable to make a clear determination of the identity of the four remaining preserved specimens that were collected from Oak Creek (Miller 1972).

Nursery and rearing habitats are areas used by larval and juvenile Gila trout. Although no studies have been done on habitat use by these life stages of Gila trout, generalizations can be made based on characteristics of related trout species. Suitable nursery habitat for trout includes areas with slow current velocity such as stream margins, seeps, shallow bars, and side channels (Behnke 1992). Low flows during emergence from the egg and early growth of larval trout may result in strong year classes (young fish are not displaced downstream) (Behnke 1992), as may constant, elevated flows during summer (improved water quality) (Service 2003). Absence of predation by non-native trout, particularly brown trout, is another essential element of nursery and rearing habitat.

Subadult and adult habitats are defined as areas suitable for survival and growth of these life stages. Subadults are sexually immature individuals, generally less than 150 millimeters (mm) (6 inches (in)) total length and adults are sexually mature individuals typically greater than 150 mm (6 in) total length (Propst and Stefferud 1997). Subadult Gila trout occur primarily in riffles (shallow water flowing over cobbles), riffle-runs, and runs, while adults are found mainly in pools (Rinne 1978). Cover (large woody debris, undercut banks, boulders, deep water, and overhanging woody and herbaceous vegetation) is an important component of subadult and adult habitat (Stefferud 1994). The quantity and quality of adult habitat typically limits the trout population biomass (Behnke 1992). Essential elements of subadult and adult habitat relate principally to channel dimensions, cover, and hydrologic variability. Absence of competition with non-native trouts (brown and rainbow) for foraging habitat is also an essential element of subadult and adult habitat.

Variation in stream flow is a major factor affecting subadult and adult population size (McHenry 1986, Turner 1989, Propst and Stefferud 1997). In particular, high flow events may cause marked decrease in population size. These events result in short-term, radical changes in habitat conditions, primarily in flow velocity. Because most streams occupied by Gila trout have relatively narrow floodplains, the forces associated with high flow events are concentrated in and immediately adjacent to the bankfull channel. High stream flow velocities cause channel scouring and displacement of fish downstream, often into unsuitable habitats (Rinne 1982).

Overwintering habitat is defined as areas that afford shelter during periods of low water temperature, generally from November through February. Rinne (1981) and Propst and Stefferud (1997) indicated the importance of pool habitat for overwinter survival of Gila trout. Essential elements of overwintering habitat are deep water with low current velocity and protective cover (Behnke 1992). These elements are important because small streams can freeze, but the presence of deep pools provides areas that do not freeze. Trout are typically more sluggish in the winter and cover is important to protect them from predators. Barriers to fish movement (e.g., waterfalls, dry stream bed) that prevent fish from accessing overwintering habitat may impact populations of Gila trout. Gila trout are now restricted to small headwater streams that typically have fewer deep pools and less suitable overwintering habitat than do larger streams (Harig and Fausch 2002).

Spawning occurs mainly in April (Rinne 1980) when temperatures are 6 to 8°C (43 to 46°F); however, day length may also be an important cue. Stream flow is apparently of secondary importance in triggering spawning activity (Rinne 1980). Young fish less than 25 mm (1.0 in) in length emerge from gravel nests 56 to 70 days after egg deposition (Rinne 1980). By the end of their first summer, young attain a total length of 70 to 90 mm (2.7 to 3.5 in) at lower elevation streams and 40 to 50 mm (1.6 to 2.0 in) at higher elevation sites (Rinne 1980; Turner 1986). Growth rates are variable, but Gila trout generally reach 180 to 220 mm (7.1 to 8.7 in) total length by the end of the third growing season in all but higher elevation streams. On average, for every 100 eggs that hatch, only two fish will survive to become adults (Brown et al. 2001).

Females reach maturity at age 2 to 4 at a minimum length of about 130 mm (5 in) (Nankervis 1988, Propst and Stefferud 1997). Males typically reach maturity at age 2 or 3. Most Gila trout live to about age 5 (Turner 1986), with a maximum age of 9 reported by Nankervis (1988). Thus, the majority of female Gila trout only spawn once and most males only spawn two or three times.

Aquatic insects are the primary food of Gila trout. Regan (1966) reported that adult flies, caddisfly larvae, mayfly nymphs, and aquatic beetles were the most abundant food items in the stomachs of Gila trout in Main Diamond Creek. There was little variation in food habits over the range of size classes sampled (47 to 168 mm (1.8 to 6.6 in) total length). Gila trout diet shifted seasonally as the relative abundance of various prey changed. Insect taxa consumed by Gila trout were also common in stomach contents of non-native trout species in the Gila River drainage, indicating the potential for interspecific competition. Hanson (1971) noted that Gila trout established a feeding hierarchy in pools during a low flow period in Main Diamond Creek. Larger fish aggressively guarded their feeding stations and chased away smaller fish. Large Gila trout occasionally consume speckled dace and may also cannibalize smaller Gila trout (Van Eimeren 1988; Propst and Stefferud 1997).

Adult Gila trout are typically sedentary and movement is influenced by population density and territoriality (Rinne 1982). Although individual fish may move considerable distances (e.g., over 1.5 km (0.9 mi)), Rinne (1982) found that after eight months, 75 percent of tagged fish were less than 100 m (328 ft) from their release sites in Main Diamond, South Diamond, and McKnight Creeks. Gila trout showed a tendency to move upstream in South Diamond Creek, possibly to perennial reaches with suitable pool habitat in response to low summer discharge. Downstream movement in Main Diamond and McKnight Creeks involved primarily smaller fish and probably occurred because of nocturnal migrations (nighttime dispersal) or displacement downstream during flooding (Rinne 1982). High density of log structures in Main Diamond Creek appeared to reduce mobility of Gila trout in that stream (Rinne 1982).

Factors affecting population size and dynamics of Gila trout are not well understood. Inferences about factors that control population size have been made from analysis of time-series data (Turner and McHenry 1985, Turner 1989, Propst and Stefferud 1997). Hydrologic variability appears to be most important in regulating population size of Gila trout in many of the streams occupied by the species (e.g., Regan 1966, Mello and Turner 1980, McHenry 1986, Turner 1989, Brown et al. 2001). Gila trout populations typically have high densities during relatively stable flow periods (Platts and McHenry 1988). The overall importance of environmental factors, specifically drought and flooding, that can occur following a fire due to a loss of vegetation, are critical factors in determining persistence of Gila trout populations. Examples of the effects of severe wildfires and subsequent floods and ash flows are the elimination of the Gila trout populations from Main Diamond Creek (1989) and South Diamond Creek (1995).

The original recovery plan for Gila trout was completed in 1979. The main objective of this recovery plan was “To improve the status of Gila trout to the point that its survival is secured and viable populations of all morphotypes are maintained in the wild” (Service 1979). The Gila Trout Recovery Plan was revised in 1984 with the same objective as the original plan. Downlisting criteria in the plan stated that “The species could be considered for downlisting from its present endangered status to a threatened status when survival of the four original ancestral populations is secured and when all morphotypes are successfully replicated or their status otherwise appreciably improved” (Service 1984). Replication involves either moving individuals from a successfully reproducing original pure or replicated population or taking hatchery-propagated fish and releasing them into a renovated stream. In 1987, we proposed that Gila trout be reclassified from endangered to threatened with a special rule to allow sport fishing (52 FR 37424). At that time, Gila trout populations were deemed sufficiently secure to meet criteria for reclassification to threatened as identified in the Plan (52 FR 37424). However, the proposed rule to downlist Gila trout was withdrawn in 1991 (September 12, 1991, 56 FR 46400) because:

1. Severe flooding in 1988 reduced the Gila trout populations in McKnight Creek by about 80 percent;

2. Wild fires in 1989 eliminated Gila trout from Main Diamond Creek and all of the South Diamond drainage except Burnt Canyon, a small headwater stream;

3. Propagation activities at hatcheries had not proceeded as planned and fish were not available to replenish wild stocks; and

4. Brown trout, a predator, was present in Iron Creek, which at the time was thought to harbor one of the original pure populations of Gila trout.

The Gila Trout Recovery Plan was revised in 1993 to incorporate new information about ecology of the species and recovery methods. Criteria for downlisting remained essentially the same as in the 1984 revision but were more specific. The 1993 plan specified that downlisting would be considered “when all known indigenous lineages are replicated in the wild” and when Gila trout were “established in a sufficient number of drainages such that no natural or human-caused event may eliminate a lineage.” The recovery plan was revised again in 2003 (Service 2003). The criteria for downlisting in the 2003 Recovery Plan include the following: (1) The four known non-hybridized indigenous lineages are protected and replicated in the wild in at least 85 km (53 mi) of streams; (2) each known non-hybridized lineage is replicated in a stream geographically separate from its remnant population such that no natural or human-caused event may eliminate a lineage; and (3) an Emergency Evacuation Procedures Plan for Gila Trout (Emergency Plan) to address wildfire impacts and discovery of non-native salmonid invasion in Gila trout streams has been developed and implemented.

Today three of the four original pure populations (Main Diamond, South Diamond, and Spruce Creeks) are replicated at least once. The Service believes the three replicated populations are secure and the viability of the Gila trout is sufficiently protected through these three populations. The species is no longer in danger of extinction. Whiskey Creek, the fourth pure population, is not replicated. The Service believes that a small population of Gila trout remains in Whiskey Creek and that it may be possible to replicate the Whiskey Creek population in the future. Work will continue to conserve the Whiskey Creek lineage, if possible. Whiskey Creek is considered a harsh environment, and the Gila trout population there has been in a tenuous situation. A broodstock management plan and an Emergency Plan have been completed (Kincaid and Reisenbichler 2002; Service 2004). Recovery actions have included chemically treating streams within the historic range of the species to remove non-native fish species, removing non-native trout by electrofishing, and constructing physical barriers to prevent movement of non-natives into renovated reaches (Service 2003).

Surveys of the 12 existing populations indicate that the recovery efforts to remove non-native fish and prevent their return to the renovated areas have been successful (Service 2003). Replicated populations in New Mexico are successfully reproducing, indicating that suitable spawning and rearing habitats are available. Replicated populations in Arizona exist in Raspberry and Dude Creeks. Young of the year were planted in Raspberry Creek in Arizona in 2000. In 2004, Gila trout in Raspberry Creek were found in mixed size classes, indicating that the fish spawned and successfully recruited. Although some fish were removed from Raspberry Creek due to the threat of wildfire, some of these fish were restocked in November 2004 into the uppermost portions of Raspberry Creek, which survived the impacts caused by the fire and which still support Gila trout. The status of the population at Raspberry Creek will be reassessed in 2005. Factors limiting reproduction in Dude Creek in Arizona are not known.

Overall, there has been an increase in the total wild population of Gila trout. In 1992, the wild populations of Gila trout were estimated to be less than 10,000 fish greater than age 1. In 2001, the population in New Mexico was estimated to be 37,000 fish (Brown et al. 2001). As noted above, Gila trout were more recently replicated in Arizona; as such, we do not have estimated numbers of fish at this time. The stream renovation and transplantation efforts have been accomplished jointly by the Service, Forest Service, NMDGF, AGFD, and New Mexico State University. Original pure populations and their replicates are summarized in Table 1.

Three of the four original pure population lineages are currently protected and replicated in 100 km (62 mi) of stream, each replicate is geographically separate from its original pure population, and an Emergency Plan has been developed and implemented. The Emergency Plan addresses wildfire-related impacts and discovery of non-native salmonid invasions (Service 2004). In 2002, the Emergency Plan (Service 2004) was implemented during the Cub Fire to evacuate fish from Whiskey Creek (Brooks 2002), and in 2003 the plan was implemented during the Dry Lakes Fire to remove fish from Mogollon Creek (J. Brooks, U.S. Fish and Wildlife Service, in litt. 2003b).

Section 4 of the Act and regulations issued to implement the listing provisions of the Act (50 CFR Part 424) set forth the procedures for listing, reclassifying, and delisting species. Species may be listed as threatened or endangered if one or more of the five factors described in section 4(a)(1) of the Act threaten the continued existence of the species. A species may be reclassified, according to 50 CFR 424.11(c), if the best scientific and commercial data available substantiate that the species' status at which it is listed is no longer correct. This analysis must be based upon the five categories of threats specified in section 4(a)(1).

For species that are already listed as threatened or endangered, this analysis of threats is primarily an evaluation of the threats that could potentially affect the species in the foreseeable future following the delisting or downlisting and the removal or reduction of the Act's protections. Our evaluation of the future threats to the Gila trout that would occur after reduction of the protections of the Act is partially based on the protection provided by the Gila and Aldo Leopold Wilderness areas, the Emergency Plan, the broodstock management plan, and limitations on take that would be determined by the States in collaboration with us.

After a thorough review of all available information and an evaluation of the five factors specified in section 4(a)(1) of the Act, we are proposing to reclassify the Gila trout as threatened, with a special rule allowing for recreational fishing, due to partial recovery. Discussion of the five listing factors and their application to recovery of the Gila trout are as follows:

In the past, Gila trout populations were threatened by habitat degradation and watershed disturbances (52 FR 37424). These factors compounded the threats posed by non-native salmonids (see Factors C and E below for discussions on non-native salmonids). We discuss habitat degradation from livestock grazing, timber harvest, and wildfires below.

Intensive livestock grazing has been shown to increase soil compaction, decrease infiltration rates, increase runoff, change vegetative species composition, decrease riparian vegetation, increase stream sedimentation, increase stream water temperature, decrease fish populations, and change channel form (Meehan and Platts 1978; Kaufman and Kruger 1984; Schulz and Leininger 1990; Platts 1991; Fleischner 1994; Ohmart 1996). Although direct impacts to the riparian zone and stream can be the most obvious sign of intensive livestock grazing, upland watershed condition is also important because changes in soil compaction, percent cover, and vegetative type influence the timing and amount of water delivered to stream channels (Platts 1991). Increased soil compaction, decreased vegetative cover, and a decrease in grasslands lead to faster delivery of water to stream channels, increased peak flows, and lower summer base flow (Platts 1991; Ohmart 1996; Belsky and Blumenthal 1997). As a consequence, streams are more likely to experience flood events during monsoons (water runs off quickly instead of soaking into the ground) that negatively affect the riparian and aquatic habitats and are more likely to become intermittent or dry in September and October (groundwater recharge is less when water runs off quickly) (Platts 1991; Ohmart 1996).

Improper livestock grazing practices degrade riparian and aquatic habitats, likely resulting in decreased production of trout (Platts 1991). Livestock affect riparian vegetation directly by eating grasses, shrubs, and trees, by trampling the vegetation, and by compacting the soil. Riparian vegetation benefits streams and trout by providing insulation (cooler summer water temperatures, warmer winter water temperatures), by filtering sediments so that they do not enter the stream (sediment clogs spawning gravel and reduces the survival of salmonid eggs), by providing a source of nutrients to the stream from leaf litter (increases stream productivity), and by providing root wads, large woody debris, and small woody debris to the stream (provides cover for the fish) (Kauffman and Krueger 1984; Platts 1991; Ohmart 1996). Poor livestock grazing practices can increase sedimentation through trampling of the steam banks (loss of vegetative cover), by removal of riparian vegetation (filters sediment), and through soil compaction (decreases infiltration rates, increases runoff, causes increased erosion). Sediment is detrimental to trout because it decreases the survival of their eggs (Bjornn and Reiser 1991), and because of its negative impact on aquatic invertebrates, a food source for trout (Wiederholm 1984).

In the late 1800s and early 1900s, livestock grazing was uncontrolled and unmanaged over many of the watersheds that contain Gila trout, and much of the landscape was denuded of vegetation (Rixon 1905; Duce 1918; Leopold 1921; Leopold 1924; Ohmart 1996). Livestock grazing is more carefully managed now, which has resulted in less impact to streams occupied by Gila trout. Improved grazing management practices (e.g., fencing) have reduced livestock access to streams. Six of the 12 streams currently occupied by Gila trout are within Forest Service grazing allotments. However, as described below, on creeks occupied by Gila trout, grazing has either been suspended or cattle are typically excluded.

Mogollon Creek is within the Rain Creek/74 Mountain Allotment. This allotment receives only winter use, and much of the riparian habitat is inaccessible to livestock. Riparian vegetation along Mogollon Creek is in good condition (A. Telles, U.S. Forest Service, Gila National Forest, in litt. 2003c). Main Diamond Creek and the adjacent riparian zone, located in the South Fork Allotment, are excluded from grazing. The Forest Service is implementing a fencing project along Turkey Run Creek to prevent livestock trespass into Main Diamond Creek (A. Telles, U.S. Forest Service, Gila National Forest, in litt. 2003c).

South Diamond Creek and Black Canyon are within the Diamond Bar Allotment, where grazing was suspended in 1996. This has resulted in marked improvements in the condition of riparian and aquatic habitat in these areas (A. Telles, U.S. Forest Service, Gila National Forest, in litt. 2003c).

In Arizona on the Apache-Sitgreaves National Forest, Raspberry Creek, which is located in the Blue Range Primitive Area, includes two grazing allotments, Strayhorse and Raspberry. The Strayhouse Allotment includes about 75 percent of the watershed above the fish barrier. The allotment was evaluated in July 1998, and determined to be in “Proper Functioning Condition” (D. Bills, U.S. Fish and Wildlife Service, in litt. 2003d). It has a well-developed riparian plant community and no adverse impacts from ongoing livestock grazing (Service 2000). Evaluation of the Raspberry Allotment occurred twice in 1998 and concluded that the allotment was “Functional—At Risk” and in a “Downward” trend (Service 2000). The report noted an incised channel (eroded downward), and concluded that upland watershed conditions were contributing to the riparian degradation. Significant changes were made to the Raspberry Allotment in 2000 (Service 2000). Specifically, the Forest Service required a reduction in livestock numbers to 46 cattle from November 1 to June 14 (or removal of cattle prior to June 14 if utilization standards are reached). Prior to this, 225 cattle were permitted on the Allotment yearlong and 160 cattle were permitted from January 1 to May 15.

Dude Creek, on the Tonto National Forest, is within the East Verde Pasture of the Cross V Allotment. Current management techniques are designed to protect the stream banks and riparian vegetation, thereby reducing sedimentation and increasing river insulation (and thereby maintaining cooler summer and warmer winter water temperatures).

Logging activities in the early to mid 1900s likely caused major changes in watershed characteristics and stream morphology (Chamberlin et al. 1991). Rixon (1905) reported the occurrence of small timber mills in numerous canyons of the upper Gila River drainage. Early logging efforts were concentrated along canyon bottoms, often with perennial streams. Tree removal along perennial streams within the historical range of Gila trout likely altered water temperature regimes, sediment loading, bank stability, and availability of large woody debris (Chamberlin et al. 1991). Nine of 10 populations in New Mexico exist in the Aldo Leopold Wilderness or Gila Wilderness. Of the two populations in Arizona, Raspberry Creek occurs in the Blue Range Primitive Area. Timber harvest is not allowed in wilderness or primitive areas. There are no plans for timber harvest near the other streams that have Gila trout (A. Telles, U.S. Forest Service, Gila National Forest, in litt. 2003c). If timber harvest were to be proposed in the future, in the two areas located outside of a wilderness or primitive area, the Forest Service would need to consider the effects of the proposed action under section 7 of the Act.

High-severity wildfires, and subsequent floods and ash flows, caused the extirpation of seven populations of Gila trout since 1989: Main Diamond (1989), South Diamond (1995), Burnt Canyon (1995), Trail Canyon (1996), Woodrow Canyon (1996), Sacaton Creek (1996), Upper Little Creek (2003) (Propst et al. 1992; Brown et al. 2001; J. Brooks, Service, pers. comm. 2003). Lesser impacts were experienced in 2002 when ash flows following the Cub Fire affected the lower reach of Whiskey Creek. However, lower Whiskey Creek is frequently intermittent and typically contains few fish (Brooks 2002). Upper Whiskey Creek, where the majority of the fish occur, was not affected by the Cub Fire. The Cub Fire also impacted the upper West Fork Gila and may have eliminated non-native trout from the watershed upstream of Turkey Feather Creek (Brooks 2002). In 2003, fire retardant was dropped on Black Canyon, affecting approximately 200 m (218 yards) of stream (J. Monzingo, U.S. Forest Service, Gila National Forest, in litt. 2003e). Although some Gila trout were killed, the number of mortalities is unknown (J. Monzingo, U.S. Forest Service, Gila National Forest, in litt. 2003e) because dead fish were carried by the current out of the area by the time fire crews arrived. However, a week after the retardant drop, live Gila trout were observed about 400 m (438 yards) below the drop site (J. Monzingo, U.S. Forest Service, Gila National Forest, in litt. 2003e).

Severe wildfires capable of extirpating or decimating fish populations are a relatively recent phenomenon, and result from the cumulative effects of historical or overly intensive grazing (can result in the removal of fine fuels needed to carry fire) and fire suppression (Madany and West 1983; Savage and Swetnam 1990; Swetnam 1990; Touchan et al. 1995; Swetnam and Baisan 1996; Belsky and Blumenthal 1997; Gresswell 1999), as well as the failure to use good forestry management practices to reduce fuel loads. Historic wildfires were primarily cool-burning understory fires with return intervals of 3-7 years in ponderosa pine (Swetnam and Dieterich 1985). Cooper (1960) concluded that prior to the 1950s, crown fires were extremely rare or nonexistent in the region. In 2003, over 200,000 acres burned in the Gila NF (S. Gonzales, U.S. Fish and Wildlife Service, in litt. 2004). The watersheds of Little Creek, Black Canyon, White Creek, and Mogollon Creek were affected. Because Gila trout are found primarily in isolated, small streams, avoidance of ash flows is impossible and opportunities for natural recolonization usually do not exist (Brown et al. 2001). Persistence of Gila trout in streams affected by fire and subsequent ash flows is problematic. In some instances, evacuation of Gila trout from streams in watersheds that have burned is necessary (Service 2004).

Effects of fire may be direct and immediate or indirect and sustained over time (Gresswell 1999). The cause of direct fire-related fish mortalities has not been clearly established (Gresswell 1999). Fatalities are most likely during intense fires in small, headwater streams with low flows (less insulation and less water for dilution). In these situations, water temperatures can become elevated or changes in pH may cause immediate death (Cushing and Olson 1963). Spencer and Hauer (1991) documented 40-fold increases in ammonium concentrations during an intense fire in Montana. Ammonia is very toxic to fish (Wetzel 1975). The inadvertent dropping of fire retardant in streams is another source of direct mortality during fires (J. Monzingo, U.S. Forest Service, Gila National Forest, in litt. 2003e).

Indirect effects of fire include ash and debris flows, increases in water temperature, increased nutrient inputs, and sedimentation (Swanston 1991; Bozek and Young 1994; Gresswell 1999). Ash and debris flows can cause mortality months after fires occur when barren soils are eroded during monsoonal rain storms (Bozek and Young 1994; Brown et al. 2001). Fish suffocate when their gills are coated with fine particulate matter, they can be physically injured by rocks and debris, or they can be displaced downstream below impassable barriers into habitat occupied by non-native trout. Ash and debris flows or severe flash flooding can also decimate aquatic invertebrate populations that the fish depend on for food (Molles 1985; Rinne 1996; Lytle 2000). In larger streams, refugia are typically available where fish can withstand the short-term adverse conditions; small headwater streams are usually more confined, concentrating the force of water and debris (Pearsons et al. 1992; Brown et al. 2001).

Increases in water temperature occur when the riparian canopy is eliminated by fire and the stream is directly exposed to the sun. After fires in Yellowstone National Park, Minshall et al. (1997) reported that maximum water temperatures were significantly higher in headwater streams affected by fire than temperatures in reference (unburned) streams; these maximum temperatures often exceeded tolerance levels of salmonids. Warm water is stressful for salmonids and can lead to increases in disease and lowered reproductive potential (Bjornn and Reiser 1991). Salmonids need clean, loose gravel for spawning sites (Bjornn and Reiser 1991). Ash and fine particulate matter created by fire can fill the interstitial spaces between gravel particles and eliminate spawning habitat or, depending on the timing, suffocate eggs that are in the gravel. Increases in water temperature and sedimentation can also impact aquatic invertebrates, changing species composition and reducing population numbers (Minshall 1984; Wiederholm 1984; Roy et al. 2003), consequently affecting the food supply of trout.

As discussed above, in the “Timber” and “Grazing” sections, we have determined that the threats to Gila trout habitat from grazing and timber harvest have been greatly reduced over time. It is expected that the livestock management practices (e.g., exclusion from riparian zones, reduction in numbers, suspension of grazing in some allotments) that have been implemented will remain in place (A. Telles, U.S. Forest Service, Gila National Forest, in litt. 2003c). Additionally, the Forest Service will continue to consider the effects of grazing on Gila trout under section 7 of the Act. Presently, 9 of the 10 streams that contain Gila trout occur in the Aldo Leopold Wilderness Area or the Gila Wilderness within the Gila National Forest, New Mexico. Timber harvest, roads, and mechanized vehicles are not allowed in wilderness areas, providing further protection to the habitat of Gila trout. Dispersed recreation does occur in wilderness areas but because of the inaccessibility of most of the streams (not near roads, hiking or backpacking is required), dispersed recreation has very little impact on the habitat. By practice, the NMDGF does not stock non-native trout within wilderness areas or above any barrier that protects a population of Gila trout. The NMDGF has not stocked non-native fish in wilderness areas for over 20 years (Mike Sloan, NMDGF, pers. comm. 2004).

High-severity forest fires remain a threat to isolated populations because natural repopulation is not possible. However, populations have been reestablished after forest fires (Main Diamond and South Diamond Creeks), there is an Emergency Plan (Service 2004) that outlines procedures to be taken in case of a high-severity forest fire, and most populations are sufficiently disjunct (e.g., separated by mountain ridges), thereby ensuring that one fire would not affect all populations simultaneously. Additionally, as discussed in this rule, fires have occurred in recent times in many areas occupied by Gila trout. Thus, the risk of fire in these areas, especially one that would affect all populations, is reduced due to an overall reduction in fuel loads. Populations may still be extirpated because of forest fires, but through management activities (rescue of fish, reestablishment of populations, hatchery management) populations can be, and have been, reestablished successfully once the habitat recovers.

All stream reaches that contain Gila trout have been closed to sport fishing since the fish was listed in 1967. While some illegal fishing may take place, we believe that the amount of take is small. These are remote high-elevation streams located away from roads and difficult to access. NMDGF visits the recovery streams on an annual basis and has found limited evidence of illegal fishing activity (e.g., fishing tackle has been found on a few occasions). Also, because NMDGF makes periodic visits to these streams, we believe their possible presence at unpredictable times serves as a deterrent to illegal angling activities.

The special rule (see “Description of Proposed Special Rule” section below) being proposed with this reclassification would enable NMDGF and the AGFD to promulgate special regulations allowing recreational fishing of Gila trout in specified waters, not including the four relict populations identified in Table 1 above. Any changes to the recreational fishing regulations will be made by the States with in collaboration with the Service. Management as a recreational species will be conducted similar to Apache trout, with angling in both recovery and enhancement waters. Enhancement waters are those managed solely for recreational purposes. Recreational management for Gila trout will be consistent with the goals of the recovery plan for the species (Service 2003). It is anticipated that implementation of the special rule will benefit the Gila trout by providing a means whereby excess Gila trout may be placed in waters that can provide a recreational benefit, thereby avoiding potential overcrowding in the designated recovery streams. Additionally, the special rule contributes to the conservation of the Gila trout through: (1) Eligibility for Federal sport fishing funds, (2) increase in the number of wild populations, (3) enhanced ability to monitor populations (e.g., creel censuses) for use in future management strategies, and (4) creation of goodwill and support in the local community. Each of these topics is discussed in detail in the “Description of Proposed Special Rule” section below.

A few Gila trout are removed from the wild for propagation, and some are taken for scientific or educational proposes, but the take is small and controlled through Federal and State permitting. Federal and State permitting will continue. Because of the remoteness of current and proposed recovery streams, the special regulations that will be imposed on angling, and the small amount of Gila trout collected for scientific and educational purposes, we determine that overutilization for recreational, scientific, or educational purposes is not a threat to Gila trout.

The carrier of bacterial kidney disease (BKD) is known to occur in trout in the upper West Fork drainage. The carrier, a bacterium (Renibacterium salmoninarum), occurs in very low amounts in brown trout populations in the upper West Fork Gila River drainage and in the Whiskey Creek population of Gila trout. The bacterium was also detected in rainbow x Gila trout hybrid populations in Iron, McKenna, and White Creeks. Although the carrier bacterium is present, there were no signs of BKD in any Gila trout populations (Service 2003). Trout populations in the Mogollon Creek drainage, McKnight Creek, Sheep Corral Canyon, and Spruce Creek all tested negative for BKD.

Whirling disease (WD) was first detected in Pennsylvania, in 1956, and was transmitted here from fish brought from Europe (Thompson et al. 1995). Myxobolus cerebralis is a parasite that penetrates through the skin or digestive tract of young fish and migrates to the spinal cartilage, where it multiplies very rapidly, putting pressure on the organ of equilibrium. This causes the fish to swim erratically (whirl) and have difficulty feeding and avoiding predators. In severe infections, the disease can cause high rates of mortality in young-of-the-year fish. Water temperature, fish species and age, and dose of exposure are critical factors influencing whether infection will occur and its severity (Hedrick et al. 1999). Fish that survive until the cartilage hardens to bone can live a normal life span, but have skeletal deformities. Once a fish reaches 3 to 4 inches in length, cartilage forms into bone and the fish is no longer susceptible to effects from whirling disease. Fish can reproduce without passing the parasite to their offspring; however, when an infected fish dies, many thousands to millions of the parasite spores are released to the water. The spores can withstand freezing, desiccation, passage through the gut of mallard ducks, and can survive in a stream for many years (El-Matbouli and Hoffmann 1991). Eventually, the spore is ingested by its alternate host, the common aquatic worm, Tubifex tubifex. After about 3.5 months in the gut of the worms, the spores transform into a Triactinomyon (TAM). The TAMs leave the worm and attach to the fish or they are ingested when the fish eats the worm. The spores are easily transported by animals, birds, and humans.

Salmonids native to the United States did not evolve with WD. Consequently, most native species have little or no natural resistance. Colorado River cutthroat trout and rainbow trout are very susceptible to the disease, with 85 percent mortality within 4 months of exposure to ambient levels of infectivity in the Colorado River (Thompson et al. 1999). Brown trout, native to Europe, evolved with M. cerebralis, become infected but rarely suffer clinical disease. At the study site on the Colorado River, brown trout thrive, but there has been little survival beyond 1 year of age of rainbow trout since 1992 (Thompson et al. 1999). Gila trout are also vulnerable to WD (D. Shroufe, Arizona Game and Fish Department, in litt. 2003a).

There have been no documented cases of WD in the Gila River drainage in New Mexico or Arizona. Wild and hatchery populations of Gila trout tested have been negative for WD (Service 2003). Although WD is a potential threat to Gila trout, high infection rates would probably only occur where water temperatures are relatively warm and where T. tubifex is abundant. T. tubifex is the secondary host for the parasite; when T. tubifex numbers are low, the number of TAMs produced will be low, and consequently, the infection rate of Gila trout will be low. T. tubifex is an ubiquitous aquatic oligochaete (worm); however, it is most abundant in degraded aquatic habitats, particularly in areas with high sedimentation, warm water temperatures, and low dissolved oxygen. In clear coldwater streams (typical Gila trout habitat) it is present but seldom abundant. Infection rate is low at temperatures less than 10°C (50°F) (Thompson et al. 1999).

We determine that BKD is not a threat to the 4 original pure populations or the 10 replicated populations because of its limited distribution, low occurrence within the trout populations, and lack of any clinical evidence of the disease in Gila trout. Likewise, we determine that WD is not a threat to Gila trout because they are located in high-elevation headwater streams that typically have cold water and low levels of sedimentation, which limit T. tubifex populations and infection rates from TAMs. Although Gila trout may be susceptible to infection, there has not been a documented occurrence of WD in a wild Gila trout population. Mora National Fish Hatchery and Technology Center, where Gila trout have been held, has tested negative for WD. In addition, NMDGF and AGFD are educating the public about how to prevent the spread of WD (e.g., through educational brochures and information provided with fishing regulations).

Predation of Gila trout by brown trout has been a serious problem, and continues to be a problem for fish below stream barriers. Brown trout, a non-native salmonid, preys on Gila trout and is able to severely depress Gila trout populations. Predation threats have been addressed by chemically removing all non-native fish and reintroducing only native species. The specific locations and timing of the potential use of chemicals in any future stream restoration projects would be made by the States in coordination with the Recovery Team. Additionally, the Gila Trout Recovery Plan provides a list of potential stream reaches that may be used for recovery purposes. Physical stream barriers, either natural waterfalls or constructed waterfalls (e.g., either composite concrete/rock or basket-type gabion) built by cooperating agencies, prevent brown trout from moving upstream and preying on Gila trout. Barrier failure is generally not considered a threat to existing Gila trout populations in New Mexico because most existing barriers are natural waterfalls. However, human-made barriers exist on lower Little Creek, McKnight Creek, and Black Canyon. Failure of human-made barriers would most likely result from catastrophic flooding and include scouring around barriers, undercutting, or complete removal. Brown trout and other non-native species downstream from these barriers remain a threat.

The threat of predation by brown trout has been reduced by eliminating brown trout from streams with Gila trout populations, and by creating barriers that prevent the upstream dispersal of brown trout into areas occupied by Gila trout. Field monitoring by the Service, Forest Service, AGFD, and the NMDGF of Gila trout provides a means to detect the introduction of brown trout into a Gila trout population, and, once detected the non-natives are removed (Service 2004). Each population is monitored at least once every 3 years. Monitoring may occur more, often depending upon the situation, such as additional surveys due to the occurrence of wildfire. Annual monitoring using electrofishing is not undertaken due to potential sampling impacts from electrofishing. The Emergency Plan provides further information on the procedures for detecting and addressing the threat of non-natives (Service 2004).

Before the Gila trout was federally listed as endangered (1967), the species had no legal protection. Upon being listed under the Act, the Gila trout immediately benefited from a Federal regulatory framework that provided protection and enhancement of the populations in three ways. First, take was prohibited. Take is defined under the Act to include killing, harassing, harming, capturing, or collecting individuals or attempting to do any of these things. Habitat destruction or degradation is also prohibited if such activities harm individuals of the species. Second, section 7 of the Act requires that Federal agencies consult with the Service to ensure that their actions will not likely jeopardize the continued existence of the species. Third, once a species is listed, the Service is required to complete a recovery plan and make timely revisions, if needed. Thus, listing the species provided recognition, protection, and prohibitions against certain practices (such as take), facilitated habitat protection, and stimulated recovery actions.

Subsequent to the Federal listing action, the States of New Mexico and Arizona officially recognized the declining status of the species. Arizona designated the Gila trout as an endangered species in 1988, which includes species that are known or suspected to have been extirpated from Arizona but that still exist elsewhere. New Mexico designated the Gila trout as an endangered species (Group 1) on January 24, 1975 (NM State Game Commission Regulation No. 663) under authority of the Wildlife Conservation Act. Group 1 species are those whose prospects of survival or recruitment in New Mexico are in jeopardy. The designation provides the protection of the New Mexico Wildlife Conservation Act (Sections 17-2-37 through 17-2-18 NMSA 1978) and prohibits taking of such species except under a scientific collecting permit. New Mexico also has a limited ability to protect the species' habitat through the Habitat Protection Act (Sections 17-3-1 through 17-3-11) through water pollution legislation, and tangentially through a provision that makes it illegal to dewater areas used by game fish (Section 17-1-14). Take of Gila trout in Arizona is prohibited through State statute (Arizona Revised Statute Title 17) and Commission Order (Commission Order 40). We do not expect any changes in the current State protections provided to the Gila trout as a result of this rule. However, if our proposed special rule is finalized, the States of Arizona and New Mexico will likely be adopting regulations to allow for recreational fishing as described in the “Description of the Proposed Special Rule” section below.

We determine that because of the protection that would be provided from Federal listing as a threatened species, along with this proposed special rule, State regulatory protection, and habitat protection provided by the National Forests, there are adequate regulatory mechanisms to protect and enhance Gila trout populations and their habitat. Many of these protective regulations, conservation measures, and recovery actions have substantially improved the status of the Gila trout.

When the Gila trout was listed as endangered, the most important reason for the species' decline was hybridization and competition with and/or predation by non-native salmonids (52 FR 37424). Uncontrolled angling depleted some populations of Gila trout, which in turn encouraged stocking of hatchery-raised, non-native species (Miller 1950; Propst 1994). Due to declining native fish populations, the NMDGF propagated and stocked Gila trout, rainbow trout, cutthroat trout, and brown trout during the early 1900s to improve angler success. Gila trout were propagated from 1923 to 1935, at the Jenks Cabin Hatchery in the Gila Wilderness, but the program was abandoned because of the hatchery's poor accessibility and low productivity (Service 1984). After early stocking programs were discontinued, the non-native trout species persisted and seriously threatened the genetic purity and survival of the few remaining populations of Gila trout. Recent efforts to recover the species have included eliminating non-native salmonids from the species historic habitat through piscicide (fish-killing), mechanical removal, and construction of waterfall barriers to prevent their reinvasion. Currently, 12 viable populations of Gila trout exist in the absence of non-native salmonids.

We have determined that the threats posed by non-native fish are reduced because non-native trout are not present in the streams with original pure or replicated populations of Gila trout. Barriers are present to prevent non-native trout from dispersing into areas occupied by pure Gila trout populations. Drought, wildfire, and floods remain as threats. However, conditions are monitored and fish can be rescued from streams threatened by drying, fires, floods, or barrier failure, if necessary (Service 2004). As explained in the Emergency Plan, these remote areas may be accessed through helicopter or use of horses and mules, depending upon the urgency of the situation. Flooding that occurs in an undisturbed watershed is not considered a threat to Gila trout. However, flooding that occurs after a severe fire is a threat. Service personnel monitor fires and the potential for flooding, and rescue fish from streams that are in danger of flash floods (Service 2004). Rescued fish may be used in broodstock development, may be introduced into other suitable streams, or they can be placed back into their stream of origin once the habitat conditions are suitable. However, it may take many years for the habitat to recover to the point that it is suitable for trout again.

We believe that reclassifying the Gila trout from endangered to threatened status with a special rule is consistent with the Act, and that the special rule will further the conservation and recovery of this species. See the “Description of the Proposed Special Rule” section below for an explanation of the conservation benefits of the proposed special rule. Threatened status is appropriate because the number of populations has increased from 4 to 12 since recovery efforts began and the threats affecting the species have been reduced or eliminated. Additionally, as noted above, the wild populations of Gila trout were estimated to be fewer than 10,000 fish greater than age 1 in 1992. In 2001, almost 10 years later, the population in New Mexico had increased significantly and was estimated to be 37,000 fish (Brown et al. 2001). Three of the four original pure population lines are protected and replicated in 100 km (62 mi) of stream, each replicate is geographically separate from its remnant population, and an Emergency Plan was developed and has been implemented in 2002 and 2003 (Service 2004), and will continue to be implemented as necessary. A copy of the Emergency Plan is available by contacting the New Mexico Fishery Resources Office (see ADDRESSES section). We have determined that the Gila trout is no longer in danger of extinction throughout all or a significant portion of its range and therefore no longer meets the definition of endangered.

Threatened status is appropriate for the Gila trout because although the major threats have been reduced by recovery efforts and its status has improved, threats to the species still exist. Non-native salmonids, which were the major threat to the species, are not in the streams that currently support Gila trout. We will continue to work with the States to manage non-native salmonids. Current State and Federal regulations prohibit the take of Gila trout and few Gila trout are taken for scientific or educational purposes, in accordance with State and Federal permits under section 10(a)(1)(A) of the Act. State and Federal regulations governing take will continue after downlisting because the special rule will prohibit take, except for take related to recreational fishing activities in accordance with State law. Threats due to natural disasters remain, but are mitigated by the Emergency Plan that addresses wildfire- and drought-related impacts and discovery of non-native salmonid invasions (Service 2004) (see “Recovery Plans and Accomplishments” section for a discussion of past successes). Therefore, we believe that given continued careful management, reclassification to a threatened status is appropriate.

Through a special rule that amends our regulations at 50 CFR 17.44, we are proposing that some forms of recreational fishing be exempted from the prohibitions against take of Gila trout. Under current regulations regarding endangered species, angling for Gila trout is not allowed. Our proposed special rule replaces the Act's general prohibitions against take of Gila trout. Those prohibitions (under section 9 of the Act) make it illegal to import, export, take, possess, deliver, receive, carry, transport, ship in interstate commerce, or sell such species. The term take, defined in section 3 of the Act, means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. However, section 4(d) of the Act provides that we may issue a special rule when a species is listed as threatened. In that case, the general prohibitions in 50 CFR 17.31 for threatened species do not apply to that species, and the special rule contains all the prohibitions and exceptions that do apply. Typically, such special rules incorporate all the prohibitions contained in 50 CFR 17.31, with additional exceptions for certain forms of take that we have determined are not necessary to prohibit.

In 1978, we finalized regulations applying most of the take prohibition provisions to threatened wildlife (50 CFR 17.31). These procedures were established on April 28, 1978 (43 FR 18181), and amended on May 31, 1979 (44 FR 31580). This proposed rule, if made final, would change the status of the Gila trout from endangered to threatened. Reclassifying the species will have no effect on the regulations regarding protection and recovery of Gila trout, except for take related to recreational fishing as provided in the proposed special rule. However, the special rule included in this proposal would enable the States of Arizona and New Mexico to promulgate special regulations allowing recreational fishing for Gila trout, beginning on the effective date of the final reclassification rule.

This proposed special rule will apply to Gila trout found in New Mexico and Arizona. The proposed special rule would allow recreational fishing of Gila trout in specified waters, not including the four relict populations identified in Table 1 above. As noted elsewhere, changes to the recreational fishing regulations will be made by the States in collaboration with the Service. Management as a recreational species will be conducted similar to Apache trout and consistent with the goals of the recovery plan for the species (Service 2003). For the reasons explained in this proposal, it is no longer necessary or advisable for the conservation of the Gila trout to prohibit take through regulated fishing. In general, establishment of recreational opportunities can be developed in recovery waters that have stable or increasing numbers of individuals (as measured by population surveys) and where habitat conditions are of sufficient quality to support viable populations of Gila trout (populations having annual recruitment, size structure indicating multiple ages, and individuals attaining sufficient sizes to indicate 3 to 7 years' survival). In addition, recreational opportunities may be developed in non-recovery or enhancement waters. The principal effect of the special rule is to allow take in accordance with fishing regulations enacted by New Mexico and Arizona. We will collaborate with the States to develop fishing regulations that are adequate to protect and conserve Gila trout. We anticipate New Mexico and Arizona will institute special regulations in certain waters that allow recreational fishing of Gila trout.

This proposed rule, even when made final, is not an irreversible action on our part. Reclassifying the Gila trout back to endangered status is possible and may be done through an emergency rule if a significant risk to the well-being of the Gila trout is determined to exist, or through a proposed rule should changes occur that alter the species' status or significantly increase the threats to its survival. Because changes in status or increases in threats (e.g., wildland fire effects, non-native salmonid invasion, barrier failure, drought) might occur in a number of ways, criteria that would trigger another reclassification proposal cannot be specified at this time.

The proposed 4(d) special rule for recreational fishing is based on the best available science. We anticipate that over time, as a result of additional studies and as the analyses of monitoring data become available, some changes in these regulations may be required (e.g., closure of areas previously permitted for fishing, or opening of new areas). Changes to the recreational fishing regulations will be made by the States in collaboration with the Service. Management as a recreational species will be consistent with the goals of the recovery plan for the species (Service 2003). These changes could result in an increase or decrease in restrictions on recreational fishing as determined in collaboration with State and Service personnel.

As noted above, a special rule for a threatened species shall be issued by the Secretary when it is deemed necessary and advisable to provide for the “conservation” of the species. The term conservation, as defined in section 3(3) of the Act, means to use and the use of all methods and procedures necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, these methods and procedures may include regulated taking. Based on the definition of conservation in the section 3(3) of the Act, recreational fishing may be authorized pursuant to a 4(d) rule in order to relieve population pressures.

We currently have active production of Gila trout at the Mora National Fish Hatchery and Technology Center. Within the near future, recovery augmentation and broodstock management needs for these two lineages will likely require the production of up to 20,000 fish. Ensuring the genetic diversity of these 20,000 fish through implementation of the broodstock management plan will result in the simultaneous production of about 100,000 fish that are excess to the recovery needs of the Gila trout. Excess Gila trout are produced as a result of the specific controlled propagation techniques required to ensure the genetic quality of the Gila trout needed for recovery. Currently, hatchery-reared and rescued Gila trout are stocked only in streams designated for recovery that are closed to angling. If the excess Gila trout were to be stocked into the designated recovery streams, this would create population pressures due to overcrowding. The streams designated for recovery are small, high-elevation streams, which do not support great numbers of fish (i.e., they have a low carrying capacity). While the numbers of Gila trout stocked into recovery streams would vary each year, depending on circumstances such as wildfire, we expect that the number of Gila trout produced would greatly exceed the carrying capacity of the recovery streams. We believe that placing excess Gila trout in streams (e.g., lower West Fork Gila River downstream of the falls near White Creek confluence, and throughout the Middle Fork Gila River) and lakes (e.g., Bill Evans Lake, Lake Roberts, Snow Lake) that are currently not identified for use as part of the long-term Gila trout recovery strategy would avoid any potential overcrowding in the designated recovery streams. Without a 4(d) rule in place that allows for recreational fishing, Gila trout could not be stocked in nonrecovery streams that are open to angling due to the take prohibitions of the Act that apply to endangered and threatened species. As proposed, the 4(d) rule for Gila trout would avoid overcrowding in the designated recovery streams by allowing excess Gila trout to be placed in streams open to angling. If excess Gila trout are not used for stocking in nonrecovery streams, we would be required to euthanize all genetically pure excess Gila trout because of limited space and resources to maintain them at the hatchery. Below we provide additional reasons as to how the proposed 4(d) rule provides for the conservation of the Gila trout beyond that of relieving potential population pressures due to overcrowding. Specifically, this proposed special 4(d) rule contributes to the conservation of the Gila trout through: (1) Determining eligibility for Federal sport fishing funds, (2) causing increase in the number of wild populations, (3) enhancing the ability to monitor populations, and (4) creating goodwill and support in the local community. Each of these topics is discussed in detail below.

There are several benefits to stocking fish in streams and lakes. First, having Gila trout in additional stream miles and lakes will increase the overall security of the species. If Gila trout are introduced into larger, higher order streams that are less subject to catastrophic events and where refugia are more abundant, these fish are likely to persist even if a large-scale disturbance such as fire were to occur. It is probable that some Gila x rainbow trout hybrids would be produced and that Gila trout might also be lost to predation by brown trout. However, it is expected that some pure Gila trout would persist since brown trout far outnumber rainbow trout in nonrecovery streams and the chance for hybridization would be minimal. Second, areas directly below existing barriers could also be targeted for stocking. These reaches of stream would then act as “buffers” between the pure populations and populations of Gila trout mixed with non-native trout. Through repeated stocking, the proportion of non-native trout would decline and decrease the likelihood that non-natives would pass the barrier, either by human transport or natural dispersal.

Finally, if Gila trout were stocked in additional waters, the angling public would be exposed to, and become more familiar with, Gila trout and their natural beauty and value as a sport fish. Having public support of recovery is essential to the success of the program. As noted above, there are several lakes (e.g., Bill Evans Lake, Lake Roberts, Snow Lake) and stream segments (e.g., lower West Fork Gila River downstream of the falls near White Creek confluence, and throughout the Middle Fork Gila River) that are not currently identified in long-term recovery strategies and that could provide quality angling opportunities for Gila trout. Within Arizona, Verde River, Oak Creek, Wet Beaver Creek, and West Clear Creek have potential for developing angling opportunities for Gila trout. Reservoirs include Watson, Willow, Mingus, and Deadhorse.

Once streams and lakes occupied by Gila trout are opened to angling, the trout can be designated as a “sport fish” and the amount of funds available to Gila trout restoration projects would increase tremendously. For example, as a sport fish the Gila trout would be eligible for funding through the Sport Fish Restoration Program (SFRP) for management activities, including hatchery production associated with the gila trout. In fiscal year 2004 NMDGF received $3,258,275 and AGFD received $3,556,597 through the SFRP. The specific amount that would be spent on the Gila trout using these funds would depend on the priorities of the NMDGF and the AGFD; however, as a sport fish the States would have this additional funding source available for restoration projects (P. Mullane, U.S. Fish and Wildlife Service, in litt. 2005). In contrast, the amount of Service money spent on Gila trout in 2004 is estimated at $137,500.

In Arizona, approximately $2.1 million (including matching dollars) are available to sport fishing projects (L. Riley, ADGF, pers.comm. 2004). In addition, about $1.7 million are available for the culture (hatchery production) of sport fish (L. Riley, ADGF, pers. comm. 2004). With increased hatchery production and establishment of new populations in additional waters, recovery goals could be reached sooner and more angling opportunities could be provided to the public. With an increase in the amount of money available for non-native trout removal, barrier construction, habitat restoration, and hatchery production, recovery and delisting of the Gila trout could be enhanced.

Monitoring and education are critical to the successful conservation of the Gila trout. We intend to work closely with the States of New Mexico and Arizona to develop evaluation and assessment programs to gather population data (e.g., size of fish caught, number caught and released), survival of released fish, and angler-related data (e.g., time spent fishing, streams fished, catch rate, hooking, and handling mortality) on streams and lakes. Our ability to evaluate these data is essential to the development of management strategies that ensure the long-term conservation of Gila trout. Using a population viability model that examined mortality from various sources, Brown et al. (2001) found that up to 15 percent angling mortality of adult Gila trout per year had no effect on population viability. Although models never perfectly incorporate the complexity of natural systems and are only an approximation based on many assumptions (Schamberger and O'Neil 1986), they are useful tools that can be used by managers to improve recovery strategies. With information gathered from streams and lakes open to angling, the impact of angling on population dynamics could be tested directly, leading to better management of the populations, especially as the species moves closer to recovery.

We also intend to work with the States to develop education programs and materials on proper handling and release of Gila trout to reduce hooking and handling mortality in catch-and-release areas, and on species identification for educational purposes. Educating the public on the uniqueness of the Gila trout, its limited distributional range, and its value as one of New Mexico's and Arizona's few native trout is expected to build support for the conservation of the species.

As mentioned above, community support is essential to the recovery of Gila trout. Some members of the public have opposed Gila trout recovery efforts because of the loss of angling opportunities for non-native trout through the renovation of streams (Brooks et al. 2000; Blue Earth Ecological Consultants 2001). As stated earlier, we believe that adequate regulatory mechanisms are in place; however, illegal angling has occurred in streams officially closed to angling (NMDGF 1997a, b), and unauthorized stocking of non-native salmonids into streams either currently occupied by Gila trout or proposed for reintroductions have been documented in recent years (NMDGF 1998; Brooks et al. 2000). It is likely that because Gila trout evolved and are adapted to this ecosystem, they will produce more stable populations and a more dependable fishery than non-native trout (Turner 1986). There is also a demonstrated high public interest in the future angling opportunities for Gila trout (NMDGF 1997a, b). Therefore, we believe that the availability of recreational fishing for Gila trout will increase public support for the conservation and recovery of the species (NMDGF 1997a).

In the 1996 Policy for Conserving Listed or Proposed Species under the Endangered Species Act While Providing for and Enhancing Recreational Fisheries Opportunities (61 FR 27978), we note that fishery resources and aquatic ecosystems are integral components of our heritage and play an important role in the Nation's social, cultural, and economic well being. Accordingly, we are aggressively working to promote compatibility and reduce conflict between administration of the Act and recreational fisheries (Executive Order 12962). Carefully regulated recreational fishing is not likely to impact Gila trout populations, and can promote awareness and conservation of the species by maintaining public support for conservation.

In conclusion, Gila trout will continue to be protected under the Act, but reclassification from endangered to threatened with a special 4(d) rule would allow recreational fishing opportunities to be developed in recovery and enhancement waters, and avoid potential overcrowding in the designated recovery streams by allowing excess Gila trout to be placed in waters open to angling. Additionally, the 4(d) rule would provide New Mexico and Arizona greater flexibility in the management of Gila trout, it will increase the amount of funding available for population expansion and habitat restoration, it will allow for the expansion and greater security of populations, it will enhance our ability to monitor and manage populations, and it will increase the public's knowledge and appreciation of this native trout. On the basis of our experience with Gila trout recovery, we expect an increase in public acceptance and greater opportunity for us to work with local agencies and the public to find innovative solutions to potential conflicts between endangered species' conservation and humans. We believe this special rule is consistent with the conservation of the species and that it will speed recovery of the Gila trout. Therefore, this special rule is necessary and advisable to provide for the conservation of the Gila trout.

Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing encourages and results in conservation actions by Federal, State, and private agencies, and groups and individuals. The Act provides for possible land acquisition and cooperation with the States and requires that recovery plans be developed and implemented for the conservation of the species, unless a finding is made that such a plan will not promote the conservation of the species. Most of these measures have already been successfully applied to Gila trout.

Under this proposed rule, the protections of the Act will continue to apply to the Gila trout. This proposed rule would change the classification of the Gila trout from endangered to threatened, and allow New Mexico and Arizona to promulgate special regulations allowing recreational fishing of Gila trout. The protection required of Federal agencies and the prohibitions against taking and harm are discussed in the Summary of Factors Affecting the Species section, Factor D, the inadequacy of existing regulatory mechanisms.

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

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

(1) In accordance with section 9(b)(1) of the Act, the possession, delivery, or movement, including interstate transport and import into or export from the United States, involving no commercial activity, of specimens of this taxon that were collected prior to the listing of this species (December 28, 1973);

(2) Activities authorized, funded, or carried out by Federal agencies (e.g., grazing management, recreational trail or forest road development or use, road construction, prescribed burns, timber harvest, or piscicide application (fish-killing agent), when such activities are conducted in accordance with a biological opinion from us on a proposed Federal action;

(3) Activities that may result in take of Gila trout when the action is conducted in accordance with a valid permit issued by us pursuant to section 10 of the Act;

(4) Recreational activities such as sightseeing, hiking, camping, and hunting in the vicinity of Gila trout populations that do not destroy or significantly degrade Gila trout habitat as further defined in the FS and State management strategies for the occupied areas; and

(5) Angling activities in accordance with authorized fishing regulations for Gila trout in New Mexico and Arizona.

We believe that the following actions involving Gila trout could result in a violation of section 9; however, possible violations are not limited to these actions alone:

(1) Take of Gila trout without a valid permit or other incidental take authorization issued by us pursuant to section 10 of the Act. Take includes harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting, or attempting any of these actions, except in accordance with applicable State fish and wildlife conservation laws and regulations;

(2) Possessing, selling, delivering, carrying, transporting, or shipping illegally taken Gila trout;

(3) Use of piscicides, pesticides, or herbicides that are not in accordance with a biological opinion issued by us pursuant to section 7 of the Act, or a valid permit or other incidental take authorization issued by us pursuant to section 10 of the Act;

(4) Intentional introduction of non-native fish species (e.g., rainbow and brown trout) that compete or hybridize with or prey upon Gila trout;

(5) Destruction or alteration of Gila trout habitat that results in the destruction or significant degradation of cover, channel stability, substrate composition, increased turbidity, or temperature that results in death of or injury to any life history stage of Gila trout through impairment of the species' essential breeding, foraging, sheltering, or other essential life functions; and

(6) Destruction or alteration of riparian and adjoining uplands of waters supporting Gila trout by timber harvest, fire, poor livestock grazing practices, road development or maintenance, or other activities that result in the destruction or significant degradation of cover, channel stability, substrate composition, increased turbidity, or temperature that results in death of or injury to any life history stage of Gila trout through impairment of the species' essential breeding, foraging, sheltering, or other essential life functions.

Questions regarding whether specific activities will constitute a violation of section 9 of the Act should be directed to the Field Supervisor of the New Mexico Ecological Services Field Office (see ADDRESSES section).

Requests for copies of the regulations concerning listed wildlife or inquiries regarding prohibitions and permits may be addressed to the U.S. Fish and Wildlife Service, Ecological Services, Endangered Species Permits, P.O. Box 1306, Albuquerque, New Mexico 87103 (telephone 505/248-6649; facsimile 505/248-6922).

Executive Order 12866 requires each agency to write regulations and notices that are easy to understand. We invite your comments on how to make this proposed rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the document clearly stated? (2) Does the proposed rule contain technical language or jargon that interferes with the clarity? (3) Does the format of the proposed rule (e.g., grouping and order of sections, use of headings, paragraphing) aid or reduce its clarity? (4) Is the description of the proposed rule in the Supplementary Information section of the preamble helpful in understanding the document? (5) What else could we do to make the proposed rule easier to understand? Send a copy of any written comments about how we could make this rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street NW., Washington, DC 20240.

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

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

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

The Act provides for one or more public hearings on this proposed rule, if requested. Given the likelihood of a request, we plan to schedule two public hearings. We will hold one public hearing in Phoenix, Arizona on June 28, 2005 and one in Silver City, New Mexico on June 29, 2005. Announcements for the public hearings will be made in local newspapers.

Public hearings are designed to gather relevant information that the public may have that we should consider in our rulemaking. During the hearings, we will present information about the proposed action. We invite the public to submit information and comments at the hearings or in writing during the open public comment period. We encourage persons wishing to comment at the hearings to provide a written copy of their statement at the start of the hearings. This notice and public hearings will allow all interested parties to submit comments on the proposed reclassification and special rule. We are seeking comments from the public, other concerned governmental agencies, tribes, the scientific community, industry, or any other interested parties concerning the proposal. Persons may send written comments to the New Mexico Ecological Services Field Office (see ADDRESSES section) at any time during the open comment period. We will give equal consideration to oral and written comments.

This rule does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under 44 U.S.C. 3501 et seq. This rule will not impose new record keeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

We have analyzed this rule making in accordance with the criteria of the National Environmental Policy Act and 318 DM 2.2(g) and 6.3(D). We have determined that Environmental Assessments and Environmental Impact Statements, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted pursuant to section 4 of the Act. A notice outlining our reasons for this determination was published in the Federal Register on October 25, 1983 (48 FR 49244).

We do not need to complete a consultation under section 7 of the Act for this rule making. The actions of listing, delisting, or reclassifying species under the Act are not subject to the requirements of section 7 of the Act. An intra-Service consultation is completed prior to the implementation of recovery or permitting actions for listed species.

In accordance with the Secretarial Order 3206, American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act (June 5, 1997); the President's memorandum of April 29, 1994, Government-to-Government Relations with Native American Tribal Governments (59 FR 22951); Executive Order 13175; and the Department of the Interior's requirement at 512 DM 2, we understand that we must conduct relations with recognized Federal Indian Pueblos and Tribes on a Government-to-Government basis. Therefore, we will solicit information from the Indian Pueblos and Tribes during the comment period. We will meet with any affected Indian Pueblos and Tribes to discuss potential effects on them or on their resources that may result from the reclassification of Gila trout and the special rule.

A complete list of all references cited in this proposed rule is available upon request from the New Mexico Ecological Services Field Office (see ADDRESSES section).

The primary authors of this notice are the New Mexico Ecological Services Field Office staff (see ADDRESSES section).

Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations as follows: