Section 218(a) of the Nuclear Waste Policy Act of 1982, as amended (NWPA), requires that “[t]he Secretary [of Energy] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear reactor power sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the NWPA states, in part, “[t]he Commission shall, by rule, establish procedures for the licensing of any technology approved by the Commission under section 218(a) for use at the site of any civilian nuclear power reactor.”

To implement this mandate, the NRC approved dry storage of spent nuclear fuel in NRC-approved casks under a general license, publishing a final rule in 10 CFR part 72 entitled, “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new subpart L within 10 CFR part 72 entitled, “Approval of Spent Fuel Storage Casks” containing procedures and criteria for obtaining NRC approval of dry storage cask designs. The NRC subsequently issued a final rule on May 1, 2000 (65 FR 25241), that approved the Holtec International HI-STORM 100 cask design and added it to the list of NRC-approved cask designs in § 72.214 as CoC No. 1014.

On March 4, 2002, and as supplemented on October 31, 2002; August 6 and November 14, 2003; February 20, April 23, July 22, August 13, October 14, and December 3, 2004, the certificate holder, Holtec International, submitted an application to the NRC to amend CoC No. 1014 to modify the cask design to include changes to materials used in construction, changes to the types of fuel that can be loaded, changes to shielding and confinement methodologies and assumptions, revisions to various temperature limits, changes in allowable fuel enrichments, and other changes to reflect current staff guidance and use of industry codes, under a general license. The specific changes requested in Amendment No. 2 to CoC No. 1014 are listed in the Safety Evaluation Report (SER). No other changes to the HI-STORM-100 cask system design were requested in this application. The NRC staff performed a detailed safety evaluation of the proposed CoC amendment request and found that an acceptable safety margin is maintained. In addition, the NRC staff has determined that there continues to be reasonable assurance that public health and safety and the environment will be adequately protected.

This rule revises the HI-STORM 100 cask design listing in § 72.214 by adding Amendment No. 2 to CoC No. 1014. The amendment consists of changes to the Technical Specifications (TS) as described above. The particular TS which are changed are identified in the NRC staff's SER for Amendment No. 2.

The NRC published a direct final rule (70 FR 9504; February 28, 2005) and the companion proposed rule (70 FR 9550) in the Federal Register to revise the Holtec International HI-STORM 100 cask system listing in 10 CFR 72.214 to include Amendment No. 2 to the CoC. The comment period ended on March 30, 2005. One comment letter was received on the proposed rule. The comments were considered to be significant and adverse and warranted withdrawal of the direct final rule. A notice of withdrawal was published in the Federal Register on May 12, 2005; 70 FR 24936. Additionally, the NRC staff amended the TS and the SER to clarify the leak rate test requirement, as discussed in the response to Comment 4.

The NRC finds that the amended HI-STORM 100 cask system, as designed and when fabricated and used in accordance with the conditions specified in its CoC, meets the requirements of part 72. Thus, use of the amended Holtec International HI-STORM 100 cask system, as approved by the NRC, will provide adequate protection of public health and safety and the environment. With this final rule, the NRC is approving the use of the Holtec International HI-STORM 100 cask system under the general license in 10 CFR part 72, subpart K, by holders of power reactor operating licenses under 10 CFR part 50. Simultaneously, the NRC is issuing a final SER and CoC that will be effective on June 7, 2005. Single copies of the CoC and SER are available for public inspection and/or copying for a fee at the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD. Copies of the public comments are available for review in the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD.

The NRC received one comment letter on the proposed rule from the New England Coalition. A copy of the comment letter is available for review in the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD. As stated in the proposed rule (70 FR 9550; February 28, 2005), the NRC considered this amendment to be a noncontroversial and routine action. Therefore, the NRC published a direct final rule (70 FR 9504; February 28, 2005) concurrent with the proposed rule (70 FR 9550; February 28, 2005). The NRC indicated that if it received a “significant adverse comment” on the proposed rule, the NRC would publish a document withdrawing the direct final rule and subsequently publish a final rule that addressed comments made on the proposed rule. The NRC believes some of the issues raised by the commenter were “significant adverse comments.” Therefore, the NRC published a notice withdrawing the direct final rule (70 FR 24936; May 12, 2005). This subsequent final rule addresses the issues raised by the commenter that were within the scope of the proposed rule.

The commenter provided specific comments on the draft CoC, the NRC staff's preliminary SER, the TS, and the applicant's Topical Safety Analysis Report. As a result of public comments, both TS 3.1.1 and SER section 8.4 were amended to clarify the leak rate test requirement. Other sections of the SER were changed to conform with the clarification of SER section 8.4. A review of the comments and the NRC staff's responses follows:

Comment 1: The commenter stated that most changes in the CoC amendment “appear to diminish engineering conservation and increase impact or risk.” The commenter noted that “while the changes appear to be within the bounds of regulation, it is not apparent that NRC or the CoC holder have demonstrated that diminished engineering conservation and increased impact or risk are offset by gains and benefits elsewhere.” The commenter provided as examples of changes which diminish engineering conservation “incorporating the storage of high burnup fuel and raising maximum permissible fuel cladding temperatures per Proposed Change Number 15a in LAR 1014 to incorporate a permissible spent fuel cladding temperature limit of 4000 °C.”

Response: Amendments to a CoC are reviewed under the same criteria as are used for the approval of the original CoC (10 CFR 72.246). The applicant for an amendment must show that any changes meet all applicable requirements to store spent fuel safely in the cask. However, the applicant is not required to show that a change, which might be viewed as reducing engineering conservatism, is offset by some increased gain or benefit elsewhere as long as the change meets all regulatory requirements for safety. The commenter acknowledges that all the changes appear to be within the bounds of regulations. The NRC staff specifically examined the effects of incorporating the storage of high burnup fuel and incorporating a permissible single spent fuel cladding temperature limit of 400 °C. It should be noted that the commenter made an error in stating that Amendment No. 2 raised “permissible spent fuel cladding temperature limit” to 4000 °C. The staff has reviewed the SER of Amendment No. 2 and found 5 references to the fuel temperature of 400 °C on pages 4-2, 4-6, 8-1(2), and 8-2. There was no mention of a 4000 °C temperature in the SER. The 570 °C temperature was mentioned a number of times. Consequently, the potential for a zirconium cladding exothermic reaction would not be an issue at 400 °C.

Comment 2: The commenter referred to an NRC staff statement that no review of the existing CoC was repeated. The commenter believes this may be an error if it also means that no review was undertaken to ascertain if the changes affect conditions, assumptions, and other inputs in determining compliance in the original application.

Response: The NRC staff did not state that no review of the existing CoC was repeated. The SER states that the staff's evaluation focused mainly on modifications requested in the amendment and did not reassess previously approved portions of the CoC, TS, and the Final Safety Analysis Report (FSAR), or those areas of the FSAR modified by Holtec as allowed by 10 CFR 72.48.

Comment 3: The commenter referred to a specific section in the SER which would allow “storage of damaged fuel in the multipurpose canister (MPC)-32 and damaged fuel and damaged fuel debris in the MPC-32F. Additionally, include appropriate values for soluble boron for MPC-32 and MPC-32F based on fuel assembly array/class, intact versus damaged fuel, and initial enrichment.” The commenter stated that a definition of “damaged fuel” versus “fuel debris” including a bounding description of “damaged fuel” and “fuel debris” should be included. Damaged fuel could range from a rod that marginally failed a leak test to a fuel fragment. Small, unclad bits of fuel would need to be properly containerized and those containers certified to some degree.

Response: The definitions of “damaged fuel” and “fuel debris” are given in section 1.0, Definitions, of Appendix B to the TS attached to the CoC for Certificate Number 1014, Amendment No. 2. The definitions contain commonly used terminology to distinguish between these two classes of contents. The definitions are repeated here:

“DAMAGED FUEL ASSEMBLIES are fuel assemblies with known or suspected cladding defects, as determined by a review of records, greater than pinhole leaks or hairline cracks, empty fuel rod locations that are not filled with dummy fuel rods, or those that cannot be handled by normal means. Fuel assemblies that cannot be handled by normal means due to fuel cladding damage are considered FUEL DEBRIS.”

“FUEL DEBRIS is ruptured fuel rods, severed rods, loose fuel pellets or fuel assemblies with known or suspected defects which cannot be handled by normal means due to fuel cladding damage.”

“Damaged fuel assemblies” and “fuel debris” must be enclosed in a specially designed “damaged fuel container” before being loaded into the cask.

Comment 4: The commenter referred to a section in the SER that stated that the change requested in this amendment affected the inspection and leak testing of the final closure welds. The applicant applied the criteria described in ISG-15, “Materials Evaluation,” and ISG-18, “The Design/Qualification of Final Closure Welds on Austenitic Stainless Steel Canisters as Confinement Boundary for Spent Fuel Storage and Containment Boundary for Spent Fuel Transportation,” in the amendment request. The commenter further stated that ISG-15 provides an NRC-approved alternative to the ASME Code for the inspection of final closure welds for austenitic materials. The inspection techniques described by ISG-15 will detect any such flaws which could lead to a failure. In addition, ISG-18 states that when the closure welds of austenitic stainless steel canisters are executed in accordance with ISG-15, the staff concludes that no undetected flaws of significant size will exist. Therefore, the NRC staff has reasonable assurance that the inspection demonstrates no credible leakage would occur from the final closure welds of austenitic stainless steel canisters, and that ISG-18 removes the need for a helium leak test of the final closure welds in accordance with ANSI N14.5.

The commenter further stated that, in the past, inspection systems have not been considered adequate for critical welds. A proof-system is typically required due to the consequence of container leakage for failure. The commenter believed it should be noted that helium is used as a leak test agent due to its small size and inert properties. The commenter did not credit that the inspection system referred to, or any inspection system that could be used expeditiously, can detect flaws at the molecular level. The commenter believed it is possible by this revised process to approve welds that may have ordinarily failed a helium leak test and stated this change could constitute a significant reduction in the gas-tight certification of the containers.

Response: Dry storage casks use redundant means to achieve adequate structural and confinement capability. First, the final closures incorporate a double barrier. This is accomplished by the use of two separate welded barriers. For the Holtec design, this is accomplished by way of the structural lid and a separate closure ring that is welded over the structural lid. If, in the unlikely event one of these welded barriers should have a leak, the other would be capable of retaining all the helium inside the storage canister.

With respect to testing of the various closure welds, a number of independent tests are employed. During the welding of the structural lid, Interim Staff Guidance (ISG)-15 specifies that a multi-pass liquid penetrant test (PT) be employed. This means that a PT exam is performed several times during the execution of the weld. The NRC staff guidance calls for the initial weld pass (called root pass) to be examined. Then, depending upon the results of a fracture mechanics evaluation or net-section stress calculation, additional PTs are performed each time a specified thickness of weld metal is deposited. Finally, the last weld pass (cover pass) is examined by PT. If any flaws are detected by any of these tests, the indicated flaw is removed by grinding. Then the affected area is rewelded and retested. Any such rework is governed by the provisions of the American Society of Mechanical Engineers (ASME) Code.

Upon acceptance of the multiple PT exams, the structural lid weld is pressure tested in accordance with the ASME Code. This pressure test is performed at an elevated pressure that is above the design pressure of the vessel. Holtec may use either water or helium for this pressure test.

Due to the large size of the structural lid weld (approximately 3/4-inch thick or greater), it is extremely unlikely that a weld flaw could exist that provided a leak path completely through the weld, and that went undetected after multiple PT exams and the Code-required pressure test. Because of the redundant nature of these independent tests, the weld thickness, and staff and industry experience with heavy section welds, it was deemed unnecessary to perform a helium leak test on the structural lid weld.

After other loading operations are completed, the cask is filled with helium and the helium pressure is adjusted to the design pressure. Then the vent and drain valves (used for filling the vessel with helium) are closed, and the valve access port is covered with a welded-on closure plate. These final closure welds are both helium leak tested and penetrant tested.

After successful completion of these required tests, the closure ring, which provides a second confinement barrier, is welded on over the structural lid, weld, and associated access port welds. This weld is penetrant tested.

As a result of the comment regarding leak testing of the final closure welds, NRC staff reviewed the TS and SER and clarified the helium leak rate test requirements within these documents.

TS 3.1.1.C was modified to reflect the requirement to helium leak rate test the vent and drain port cover plate welds. Section 8.4 of the SER was added to clarify guidance, specifically that the vent and drain port cover plate welds shall be helium leak rate tested but that it is not necessary to helium leak rate test the lid-to-shell weld. Other sections of the SER were revised accordingly to reflect this clarification.

The NRC staff finds that with the double confinement barriers and the multiple tests employed to verify their quality and integrity, a high level of assurance exists regarding the leak-tightness of the confinement boundary.

Comment 5: The commenter referred to section 2.3.5 of the SER, “Criticality.” The design criterion for criticality safety is that the effective neutron multiplication factor, including statistical biases and uncertainties, does not exceed 0.95 under normal, off-normal, and accident conditions. The commenter stated that 0.95 is pretty close to <= 1 multiplication, or criticality. The commenter was concerned that “after pencil-whipping a design someone is willing to work under a margin of error of 0.06.” The commenter further stated that the exact interior of the structure, the boron loading of the Metamic neutron absorber, the exact position of the fuel (damaged or otherwise) plus other factors, must be within a margin of error, potentially, of 0.06. The commenter stated it was difficult to credit that the fuel assemblies are packed so tight that they can be packed to an MF of 0.94.

Response: A dry-storage cask design which maintains the effective multiplication factor (k eff ) ≤ 0.95 at a 95-percent confidence level when combined with the additional bounding assumptions described below is considered by the NRC to provide reasonable assurance that the cask and its contents will remain sufficiently subcritical under all credible normal, off-normal, and accident conditions. This acceptance criterion is specified in section 6.0, subsection IV, of the “Standard Review Plan for Dry Cask Storage Systems,” NUREG-1536.

In addition to the administrative margin described above ( i.e. , when the final adjusted value of k eff is at least 0.05 below the critical value of 1.0), the applicant applied the following bounding assumptions in its criticality analysis:

(1) No credit was taken for fuel burnup;

(2) The worst hypothetical combination of tolerances ( i.e. , those value limits which maximized the multiplication factor) was assumed for the basket structure and fuel assembly dimensions;

(3) Reduced credit from the minimum acceptable boron content in the poison plates (25-percent reduction for Boral plates and 10-percent reduction for the Metamic plates) was applied;

(4) Fuel related burnable neutron absorbers were neglected;

(5) Each fuel assembly was placed in its most reactive position within its respective basket fuel cell;

(6) Neutron absorption in minor structural members and optional heat conducting elements were neglected; and

(7) The flooding water (fresh or borated) was assumed to be at its optimum density to maximize k eff .

These bounding assumptions are consistent with NRC's guidance and provide an additional margin of safety that encompasses any margin of error in the nominal parameter values of the design and contents.

Comment 6: The commenter did not believe that the NRC staff demonstrated consideration of a reasonably assumed error bandwidth within each of the seven coefficients (inputs) to the equation listed in Equation 2.1.9.3. The commenter stated that the cumulative error potential is large enough to have “Biblical” overtones, as in “77 times 7.” The commenter also stated that one would like to assume that parallel calculations were performed using traditional methods as a “sanity check.” The commenter believed that with unique source-term analyses and curve-fitting analyses designed by the applicant to drive the coefficients, verification and validation information regarding this burnup model is essential and should be included or referenced in the SER.

Response: The comment expresses a concern regarding error in the applicant's new methodology and the need for confirmatory analysis to verify and validate the burnup equation and its coefficients. The existing sections 5.0, 5.2.3, and 5.2.4 of the SER address this concern and document that the NRC staff reviewed and explicitly considered the applicant's methodology, the burnup equation, and its coefficients, which include adjustments that account for error and uncertainty. As part of its review, the staff performed confirmatory analyses, using Computer Code SAS-2H, to test the validity of the burnup equation and its associated coefficients. These calculations produced decay heats that were in general agreement with the burnups and associated thermal values applied in the burnup equation. The NRC staff did not identify any significant errors in the new methodology, the burnup equation, and its coefficients. The staff believes that its review of the new methodology, including confirmatory calculations, provides reasonable assurance that the shielding and thermal design is safe and satisfies the regulations at 10 CFR part 72.

Comment 7: The commenter stated that NRC shot the SER through with subjective language. The example given was “The amendment request addresses a slight increase of 10% in the off-normal internal design.” The commenter objected to using the word “slight” and stated that describing a 10% increase as slight is amateurish in regulatory language or in any technical document and gives the appearance of collusion, as if to help sell to the audience any changes that are less conservative. The commenter questioned if a 10% reduction in the allowable pressure would be described as huge.

Response: Section 3.0 of the SER provides an overview of the structural evaluation. The full text of the third paragraph of that section to which the commenter referred is as follows:

“The amendment request addresses a slight increase of 10% in the off-normal internal design pressure, increases in the allowable temperature of the structural materials and the creation of an eighth type MPC unit: The MPC-32F. No changes were made to the drawings of the various components that have been previously provided in Section 1.5 of the FSAR since no material or design dimensions were revised.”

On page S-2 of the SER, the following is stated in Item 16: “Increase off-normal design pressure from 100 psig to 110 psig and increase the normal temperature limit for the overpack lid top plate from 350-degrees F to 450-degrees F.” This reflects the change incorporated into the Amendment 2 documents.

Section 3.1.2.1 of the SER, “Criteria for Multi-Purpose Dry Storage Canisters,” contains the following statements: “The proposed amendment revises the MPC off-normal internal pressure from 100 psig to 110 psig as noted in Table 2.2.1 of the FSAR * * *. No physical changes were necessary to accommodate the revised pressure * * *.”

The technical document is quite clear in the fact that the increase of 10 psig (an increase of 10 percent) has no impact on the physical dimensions or design of the MPC pressure vessel. The reason for this is that the physical dimensions of the MPC are not governed by the off-normal internal pressure.

Comment 8: The commenter stated that there is an element of vagueness in the SER that offers little guidance to a reader seeking to confirm the degree of rigor to which the amendment application was exposed. The NRC refers to many staff reviews of the licensee's practices, but without specifics. In some cases, it is inferred that the staff verified calculations; in others, that approval was cursory because of similarities with other cask models. It is difficult to say that early cask designs will be safe in the long term. One has to be careful in approving a new design that is “similar” to the old one when the old one has not yet met the test of time.

Response: NRC disagrees with the commenter that this amendment application was not exposed to a sufficient degree of rigor. This amendment request was under active review by the NRC staff for over 2.75 years. As discussed in the response to Comment #1, amendments to a CoC are reviewed under the same criteria as are used for the approval of the original CoC (10 CFR 72.246). Also, the application for an amendment must show that any changes meet all applicable requirements to store spent fuel safely in the cask. NRC's review process is documented in NUREG-1536 entitled “Standard Review Plan for Dry Cask Storage Systems.” NRC regulations permit applicants to demonstrate compliance by various means, including certification through testing, analyses, comparison to similar approved designs, or combinations of these methods. Referencing previously reviewed information that has not changed is acceptable. The SER documents the NRC's review process and conclusions regarding the cask design's ability to comply with part 72. Furthermore, this amendment will not extend the CoC period. Therefore, it does not change the conclusion reached previously regarding the safety of the cask with respect to time.

Comment 9: The commenter is concerned that the NRC review does not extend beyond a review of the proposed theoretical model. The commenter also stated that the application spoke very little about QA/QC with respect to cask/canister materials and performance.

Response: The NRC conducts planned and reactive inspections of cask vendors and their major fabricators on a continuing basis. The results of these inspections, including any technical concerns of a licensing nature, are shared internally with the NRC's Spent Fuel Project Office staff, and are documented in publicly available inspection reports. Quality assurance program implementation inspections were performed at the Holtec corporate office in September 2004 (reference ML043080505) and its fabricator, U.S. Tool & Die, in October 2004 (reference ML043100408). No significant adverse findings with respect to quality assurance/control issues were identified during those inspections.

Certificate No. 1014 is revised by adding the effective date of Amendment Number 2.

The NRC finds that good cause exists to waive the 30-day deferred effective date provisions of the Administrative Procedure Act (5 U.S.C. 553(d)). The primary purpose of the delayed effective date requirement is to give affected persons, e.g. , licensees, a reasonable time to prepare to comply with or take other action with respect to the rule. In this case, the rule does not require any action to be taken by licensees. The regulation allows, but does not require, use of the amended Holtec International HI-STORM 100 cask system for the storage of spent nuclear fuel. The Holtec International HI-STORM 100 cask system, amended to include changes to materials used in construction, changes to the types of fuel that can be loaded, changes to shielding and confinement methodologies and assumptions, revisions to various temperature limits, changes in allowable fuel enrichments, and other changes to reflect current staff guidance and use of industry codes, meets the requirements of 10 CFR part 72, and is ready to be used. A number of utilities have an operational need to load the casks to preserve full core off-load capability at their sites. The utilities are preparing for refueling outages in Fall of 2005 and need to load fuel into the storage casks in advance of the outages. The amended Holtec International HI-STORM cask system, as approved by the NRC, will continue to provide adequate protection of public health and safety and the environment.

The National Technology Transfer Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this final rule, the NRC is revising the HI-STORM 100 cask system design listed in § 72.214 (List of NRC-approved spent fuel storage cask designs). This action does not constitute the establishment of a standard that establishes generally applicable requirements.

Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the Federal Register on September 3, 1997 (62 FR 46517), this rule is classified as Compatibility Category “NRC.” Compatibility is not required for Category “NRC” regulations. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act of 1954, as amended (AEA), or the provisions of Title 10 of the Code of Federal Regulations. Although an Agreement State may not adopt program elements reserved to NRC, it may wish to inform its licensees of certain requirements via a mechanism that is consistent with the particular State's administrative procedure laws but does not confer regulatory authority on the State.

Under the National Environmental Policy Act of 1969, as amended, and the NRC regulations in subpart A of 10 CFR part 51, the NRC has determined that this rule is not a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. This final rule amends the CoC for the HI-STORM 100 cask system within the list of approved spent fuel storage casks that power reactor licensees can use to store spent fuel at reactor sites under a general license. The amendment modifies the present cask system design to include changes to materials used in construction, changes to the types of fuel that can be loaded, changes to shielding and confinement methodologies and assumptions, revisions to various temperature limits, changes in allowable fuel enrichments, and other changes to reflect current NRC staff guidance and use of industry codes, under a general license. The EA and finding of no significant impact on which this determination is based are available for inspection at the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD. Single copies of the EA and finding of no significant impact are available from Jayne M. McCausland, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-6219, e-mail jmm2@nrc.gov .

This final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Existing requirements were approved by the Office of Management and Budget, Approval Number 3150-0132.

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.

On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent nuclear fuel under a general license in cask designs approved by the NRC. Any nuclear power reactor licensee can use NRC-approved cask designs to store spent nuclear fuel if it notifies the NRC in advance, spent fuel is stored under the conditions specified in the cask's CoC, and the conditions of the general license are met. A list of NRC-approved cask designs is contained in § 72.214. On May 1, 2000 (65 FR 25241), the NRC issued an amendment to part 72 that approved the HI-STORM 100 cask design by adding it to the list of NRC-approved cask designs in § 72.214. On March 4, 2002, and as supplemented on October 31, 2002; August 6 and November 14, 2003; February 20, April 23, July 22, August 13, October 14, and December 3, 2004, the certificate holder, Holtec International, submitted an application to the NRC to amend CoC No. 1014 to modify the present cask system design to include changes to materials used in construction, changes to the types of fuel that can be loaded, changes to shielding and confinement methodologies and assumptions, revisions to various temperature limits, changes in allowable fuel enrichments, and other changes to reflect current staff guidance and use of industry codes, under a general license.

The alternative to this action is to withhold approval of this amended cask system design and issue an exemption to each utility. This alternative would cost both the NRC and the utilities more time and money because each utility would have to pursue an exemption.

Approval of the final rule will eliminate this problem and is consistent with previous NRC actions. Further, the final rule will have no adverse effect on public health and safety. This final rule has no significant identifiable impact or benefit on other Government agencies. Based on this discussion of the benefits and impacts of the alternatives, the NRC concludes that the requirements of the final rule are commensurate with the NRC's responsibilities for public health and safety and the common defense and security. No other available alternative is believed to be as satisfactory, and thus, this action is recommended.

In accordance with the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the NRC certifies that this rule will not, if issued, have a significant economic impact on a substantial number of small entities. This direct final rule affects only the licensing and operation of nuclear power plants, independent spent fuel storage facilities, and Holtec International. The companies that own these plants do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the Small Business Size Standards set out in regulations issued by the Small Business Administration at 13 CFR part 121.

The NRC has determined that the backfit rule (10 CFR 50.109 or 10 CFR 72.62) does not apply to this direct final rule because this amendment does not involve any provisions that would impose backfits as defined. Therefore, a backfit analysis is not required.

In accordance with the Small Business Regulatory Enforcement Fairness Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs, Office of Management and Budget.

The FAA proposed to amend 14 CFR part 39 with an AD for certain BAE Systems (Operations) Limited Model BAe 146 airplanes. That action, published in the Federal Register on March 30, 2005 (70 FR 16173), proposed to require repetitive inspections for cracks of the fuselage pressure skin above the left and right main landing gear (MLG) bay. The action also proposed AD to require corrective action, including related investigative actions, if leaks are found.

We provided the public the opportunity to participate in the development of this AD. No comments have been submitted on the proposed AD or on the determination of the cost to the public.

We have revised the applicability of the proposed AD to identify model designations as published in the most recent type certificate data sheet for the affected model.

We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD with the change described previously. We have determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.

The following table provides the estimated costs for U.S. operators to comply with this AD.

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 rulemaking action.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866;

(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

The FAA proposed to amend 14 CFR part 39 with an AD for certain Boeing Model 727-200 series airplanes equipped with a No. 3 cargo door. That action, published in the Federal Register on January 5, 2005 (70 FR 729), proposed to require repetitive detailed and high frequency eddy current inspections for cracking of the forward, lower corner frame and forward end of the lower beam of the No. 3 cargo door, and corrective actions if necessary. That action also proposed to provide an optional terminating action for the repetitive inspections.

We provided the public the opportunity to participate in the development of this AD. We have considered the comments that have been submitted on the proposed AD.

One commenter supports the intent of the NPRM and actions of the proposed AD.

One commenter, the manufacturer, requests that paragraph (k)(2) of the final rule be changed to replace the reference to a Designated Engineering Representative (DER) with references to a Boeing Authorized Representative as a part of the Boeing Delegated Compliance Organization with Delegated Option Authorization.

We agree with this request. Boeing has received a Delegation Option Authorization (DOA). We have revised this final rule to delegate the authority to approve an alternative method of compliance for any repair required by this AD to the Authorized Representative for the Boeing DOA Organization rather than the Designated Engineering Representative (DER).

We have carefully reviewed the available data, including the comments that have been submitted, and determined that air safety and the public interest require adopting the AD with the change described previously. We have determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.

There are about 390 Model 727-200 series airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this AD.

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 rulemaking action.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866;

(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

The FAA proposed to amend 14 CFR part 39 with an AD for certain Bombardier Model DHC-8-102, -103, -106, -201, -202, -301, -311, and -315 airplanes. That action, published in the Federal Register on March 30, 2005 (70 FR 16182), proposed to require installation of check valves in Numbers 1 and 2 hydraulic systems, removal of the filters from the brake shuttle valves, and removal of the internal garter spring from the brake shuttle valves.

We provided the public the opportunity to participate in the development of this AD. No comments have been submitted on the proposed AD or on the determination of the cost to the public.

We have revised the Costs of Compliance section of this AD to correct a mathematical error.

We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

The following table provides the estimated costs for U.S. operators to comply with this AD:

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 rulemaking action.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866;

(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

What events have caused this AD? The Luftfahrt-Bundesamt (LBA), which is the airworthiness authority for Germany, recently notified FAA that an unsafe condition may exist on all GROB-WERKE (GROB) Model G120A airplanes. The LBA reports an incident of a damaged spherical bearing (part number (P/N) S20) installed in the main landing gear on one of the affected airplanes. Evidence showed that the bearing inner ring was shifted against the outer ring. This indicated that the bearing was exposed to high axial loads. Grob has an improved spherical bearing (P/N SSRC 20 C2) that can tolerate higher axial loads.

What is the potential impact if FAA took no action? Main landing gear front and rear bearings that are susceptible to damage when exposed to high axial loads could result in failure of the landing gear bearing. This failure could lead to loss of control on landing.

Has FAA taken any action to this point? We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to all GROB-WERKE (GROB) Model G120A airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on April 1, 2005 (70 FR 16769). The NPRM proposed to require you to replace the main landing gear front and rear spherical bearings with improved spherical bearings.

Was the public invited to comment? We provided the public the opportunity to participate in developing this AD. We received no comments on the proposal or on the determination of the cost to the public.

What is FAA's final determination on this issue? We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial corrections. We have determined that these minor corrections:

How does the revision to 14 CFR part 39 affect this AD? On July 10, 2002, the FAA published a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the 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 does this AD impact? We estimate that this AD affects 6 airplanes in the U.S. registry.

What is the cost impact of this AD on owners/operators of the affected airplanes? We estimate the following costs to do the replacement of the main landing gear front and rear spherical bearings with improved spherical bearings. We have no way of determining the number of airplanes that may need this 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.

Will this AD impact various entities? We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

Will this AD involve a significant rule or regulatory action? For the reasons discussed above, I certify that this 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 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 “Docket No. FAA-2005-20590; Directorate Identifier 2005-CE-13-AD” in your request.

What events have caused this AD? The Luftfahrt-Bundesamt (LBA), which is the airworthiness authority for Germany, recently notified FAA that an unsafe condition may exist on certain Extra Flugzeugproduktions-und Vertriebs-GmbH (EXTRA) Models EA-300, EA-300S, EA-300L, and EA-300/200 airplanes. The LBA reports an incident of a fire in the engine compartment on one of the affected airplanes due to a leaking gascolator. Evidence showed that the spilled fuel had leaked down the firewall and through the non-sealed connections between the firewall and the bottom fuselage cover (belly fairing). The fire in the engine compartment spread to the cabin and resulted in loss of the airplane.

What is the potential impact if FAA took no action? A fuel leak behind the firewall could result in an in-flight fire, which could cause loss of the airplane and crew.

Has FAA taken any action to this point? We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain Extra Flugzeugproduktions-und Vertriebs-GmbH (EXTRA) Models EA-300, EA-300S, EA-300L, and EA-300/200 airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on April 1, 2005 (70 FR 16771). The NPRM proposed to require you to seal with firewall sealant the gaps between the bottom fuselage cover (belly fairing) and the firewall and whenever you install the bottom fuselage cover (belly fairing).

Was the public invited to comment? We provided the public the opportunity to participate in developing this AD. We received no comments on the proposal or on the determination of the cost to the public.

What is FAA's final determination on this issue? We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial corrections. We have determined that these minor corrections:

How does the revision to 14 CFR part 39 affect this AD? On July 10, 2002, the FAA published a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the 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 does this AD impact? We estimate that this AD affects 199 airplanes in the U.S. registry.

What is the cost impact of this AD on owners/operators of the affected airplanes? We estimate the following costs to seal with firewall sealant the gaps between the bottom fuselage cover (belly fairing) and the firewall:

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.

Will this AD impact various entities? We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

Will this AD involve a significant rule or regulatory action? For the reasons discussed above, I certify that this 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 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 “Docket No. FAA-2005-20588; Directorate Identifier 2005-CE-11-AD” in your request.

What events have caused this AD? AD 99-24-10 currently requires the following on all aircraft equipped with Precise Flight, Inc. Model SVS III standby vacuum systems installed under the applicable supplemental type certificate (STC) or through field approval:

The SVS is intended to provide emergency vacuum power for aircraft instruments when the primary vacuum system fails. The design of the Precise Flight, Inc. Models SVS I and SVS IA SVS is similar to the Model SVS III SVS, and so may not be able to provide sufficient vacuum power without actions similar to those of AD 99-24-10.

The Precise Flight, Inc. Models SVS I and SVS IA SVS are installed on aircraft through a supplemental type certificate (STC) or through field approval. The Applicability section of the proposed AD lists the applicable STCs and aircraft that could have these SVS installed. This list is not meant to be exhaustive nor does it include all aircraft with the systems installed through field approval.

What is the potential impact if FAA took no action? Failure or malfunction of the SVS during IFR flight can lead to pilot disorientation and loss of control of the aircraft.

Has FAA taken any action to this point? Consequently, we issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to all airplanes equipped with Precise Flight, Inc. (Precise Flight) Models SVS I and SVS IA standby vacuum systems (SVS) installed under certain supplemental type certificates or through field approval. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on March 4, 2005 (70 FR 10517). The NPRM proposed to require you to replace the airplane flight manual supplement (AFMS) in the airplane flight manual with the appropriate revision and install placards as defined in the AFMS, upgrade the Model SVS I or SVS IA SVS to the Model VI SVS, and add the instructions for continued airworthiness (ICA) to the maintenance schedule for the aircraft.

Was the public invited to comment? We provided the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal and FAA's response to each comment:

What is the commenter's concern? Precise Flight has moved and requests use of the new mailing address. Further, Precise Flight Inc. requests use of a specific Internet address for information about the Models SVS I and SVS IA.

What is FAA's response to the concern? We agree with the commenter. We will include the correct mailing and Internet addresses in the AD.

What is the commenter's concern? Precise Flight states that the cost of parts has increased since FAA first issued the NPRM. The cost of parts has changed from $77 to $195. Precise Flight requests the AD to reflect this increase.

What is FAA's response to the concern? The FAA agrees with the commenter. We have re-evaluated the proposed cost of parts and determined that the correct cost of parts is $195.

We will change the final AD action to include the correct cost of parts.

What is the commenter's concern? Precise Flight states that the correct report number for the cited service information should change from 08080 to 08074. The commenter requests that the final AD action reflect the correct report number.

What is FAA's response to the concern? We agree with Precise Flight that the correct report number is 08074.

We will change the final AD action to show that the correct report number 08074.

What is the commenter's concern? Precise Flight states that to avoid confusion, the final AD action should state that the AD does not apply to the Models SVS V or SVS III which have been upgraded to the SVS V following the FAA-approved alternative method of compliance (AMOC) dated December 22, 1999. The commenter requests the final AD action include a note that clarifies the affected models of SVS.

What is FAA's response to the concern? To avoid confusion about the applicability of the proposed AD we will include a note to read: “This AD affects Models SVS I and SVS IA only. The Model SVS III is addressed by AD-99-24-10, Amendment 39-11434 (64 FR 66747, November 30, 1999).”

What is FAA's final determination on this issue? We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed except for the changes discussed above and minor editorial corrections. We have determined that these changes and minor corrections:

How does the revision to 14 CFR part 39 affect this AD? On July 10, 2002, the FAA published a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the 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 does this AD impact? We estimate that this AD affects 800 airplanes in the U.S. registry.

What is the cost impact of this AD on owners/operators of the affected airplanes? We estimate the following costs to replace the airplane flight manual supplement (AFMS) in the airplane flight manual with the appropriate revision. We have no way of determining the number of airplanes that may need this replacement:

We estimate the following costs to do any upgrade to the Model VI SVS, install placards, and add the installation report including the instructions for continued airworthiness (ICA) to the maintenance schedule for the aircraft. We have no way of determining the number of airplanes that may need this upgrade:

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.

Will this AD impact various entities? We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

Will this AD involve a significant rule or regulatory action? For the reasons discussed above, I certify that this 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 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 “Docket No. FAA-2004-19354; Directorate Identifier 2004-CE-3-AD” in your request.

The FAA proposed to amend 14 CFR part 39 with an AD for certain Boeing Model 767-200, -300, and -300F series airplanes. That action, published in the Federal Register on January 5, 2005 (70 FR 727), proposed to require installing a new, improved foam seal around certain ducts in the forward cargo compartment.

We provided the public the opportunity to participate in the development of this AD. We have considered the comments that have been submitted on the proposed AD. Two commenters concur with the proposed AD.

One commenter estimates that the proposed modification of the foam seals requires approximately 3.5 work hours per airplane, at a cost of $22,220 for its fleet. The commenter notes that it has accomplished the modification on all of its fleet. A second commenter estimates that the required work hours for the proposed AD would be 4.5 work hours per airplane, as specified in the referenced service information, at an estimated cost of $292.50 per airplane.

We infer that the commenters are asking that the work hour estimate specified in the “Costs of Compliance” section be increased. We do not agree. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. This AD requires installing a new, improved foam seal around certain ducts in the forward cargo compartment. We recognize that in accomplishing the requirements of any AD, operators may incur incidental costs in addition to the direct costs. However, the cost analysis in AD rulemaking actions typically does not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions. Because incidental costs may vary significantly from operator to operator, they are almost impossible to calculate. We have made no change to the AD in this regard.

We have carefully reviewed the available data, including the comments that have been submitted, and determined that air safety and the public interest require adopting the AD as proposed.

There are about 468 airplanes of the affected design in the worldwide fleet. This AD affects about 342 airplanes of U.S. registry.

For Group 1 and 2 airplanes: The foam seal installation around the cooling air supply and exhaust ducts takes about 2 work hours per airplane, at an average labor rate of $65 per work hour. The cost of parts is minimal. Based on these figures, the estimated cost of the installation is $130 per airplane.

For Group 2 airplanes: The foam seal installation around the avionics cooling and refrigeration unit duct takes about 2 work hours per airplane, at an average labor rate of $65 per work hour. The cost of parts is minimal. Based on these figures, the estimated cost of the installation is $130 per airplane.

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 rulemaking action.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866;

(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

The FAA proposed to amend 14 CFR part 39 with an AD for certain Bombardier Model DHC-8-400, -401, and -402 series airplanes. That action, published in the Federal Register on March 30, 2005 (70 FR 16170), proposed to require repetitive inspections to detect discrepancies of the attachment fittings of the outboard flap front spar at flap track Number 4 and Number 5 locations, and corrective actions if necessary. The proposed AD also would require eventual replacement of the attachment fittings as terminating action for the repetitive inspections.

We have revised the applicability of the proposed AD to identify model designations as published in the most recent type certificate data sheet for the affected models.

We provided the public the opportunity to participate in the development of this AD. We have considered the comment that was submitted on the proposed AD. The commenter supports the proposed AD.

We have carefully reviewed the available data, including the comment that has been submitted, and determined that air safety and the public interest require adopting the AD with the change described previously. We have determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.

The following table provides the estimated costs for U.S. operators to comply with this AD.

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 rulemaking action.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866;

(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

On March 15, 2005 (70 FR 15994), EPA issued a final rule in which EPA revised the regulatory finding issued on December 15, 2000, pursuant to CAA section 112(n)(1)(A), and concluded that it is neither appropriate nor necessary to regulate coal- and oil-fired Utility Units under CAA section 112. Based on this revised finding, EPA removed coal- and oil-fired Utility Units from the CAA section 112(c) list.

This notice corrects certain explanatory text, which is the text in the final rule that supports the two above-noted regulatory actions. The corrections can be categorized generally as follows: (a) Insertion of citations inadvertently omitted from the text; (b) correction of typographical errors; (c) clarification of confusing explanatory text; and (d) correction of incorrect factual statements.

Below, we identify each technical correction to the explanatory text at 70 FR 15994-16035 and provide a brief explanation for the corrections. Specifically, 70 FR 15994-16035 is corrected, as follows:

(1) On page 16012, column 1, in the second full paragraph, after the second sentence, add the following citation: See Centers for Disease Control, Blood Mercury Levels in Young Children and Childbearing-Aged Women—United States, 1999-2002, MMWR Morb Mortal Wkly Rep. 2004 Nov 5; 53(43):1018-1020. http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5343a5.htm.

We are adding the above citation because the explanatory text on page 16012 of the final rule summarizes the Center for Disease Control report, but inadvertently fails to include the citation to that report.

(2) On page 16024, column 3, in the second full paragraph, after the second sentence, add the following: http://www.epa.gov/ttn/atw/nata/gloss1.html#hazardquotient.

This revision adds an inadvertently omitted citation for the text quoted in the noted paragraph.

(3) On page 16012, column 1, in the second full paragraph, change the fourth sentence to read as follows:

“The analysis of the first 1,500 of these women, which was based on 1999-2000 data, showed that Hg blood levels were higher in the women who reported eating three or more servings of fish in the month before they were tested.”

We are revising this sentence because the original sentence in the preamble is confusing as to the number of women studied and the years of data examined in the study. This revision clarifies that the analysis of 1,500 women concerned only the first part of a larger study of 3,600 women and was based on 1999-2000 data.

(4) On page 16024, column 1, in the first full paragraph, in the second sentence, insert the phrase “having utility-attributable exposures” before the word “exceeding.”

This clarification is necessary to make clear that the statement is limited to utility-attributable mercury exposures. As noted throughout the March 29, 2005 final rule, EPA's analysis pursuant to CAA section 112(n)(1)(A) focused on utility-attributable mercury exposures. (See 70 FR 15998, 16022.)

(5) On page 16024, column 3, in the last paragraph that begins on that page, in the second sentence, add the phrase “to utility-attributable methylmercury” before the word “above.”

This clarification is necessary to make clear that the statement is limited to utility-attributable mercury exposures. See explanation provided in item 4 above.

(6) At the following locations, delete the word “anglers” or “angler” and insert in lieu thereof “fishers” or “fisher” respectively:

(i) On page 16012, column 1, in the last paragraph, in the first sentence;

(ii) On page 16022, column 1, in the first full paragraph, in the last sentence;

(iii) On page 16023, column 3, in the second full paragraph, in both places;

(iv) On page 16024, column 1, in the carryover paragraph from page 16023, in the second full sentence;

(v) On page 16024, in the first full paragraph, in all three places that it appears;

(vi) On page 16024, column 2, in the first full paragraph, in the last sentence;

(vii) On page 16024, column 2, in the second full paragraph, in the first sentence; and

(viii) On page 16024, column 3, in the last paragraph that begins on that page, in the second sentence.

The term “fishers” is appropriate because it includes anglers, who are individuals who catch fish with a pole or rod, as well as persons who catch fish in other ways. Our conclusions in the final rule were based on information concerning fishers, not anglers; thus, all references to “anglers” or “angler” should be to “fishers” or “fisher,” respectively.

(7) On page 16022, column 3, in the carryover paragraph from column 2, delete the number “292.8” and insert in lieu thereof the number “394.”

The sentence at issue here summarizes a study by the Great Lakes Indian Fish and Wildlife Commission. The sentence incorrectly summarizes one of the figures cited in that study. The above-noted change rectifies this inadvertent error and correctly reflects the number in the study.

(8) On page 16023, column 3, in the carryover paragraph from column 2, in the first full sentence, delete the word “commercial” and insert in lieu thereof “marine.”

This revision corrects the erroneous use in this sentence of the term “commercial'—which refers to purchased marine, freshwater, and estuarine fish—by replacing it with the term “marine,” which refers to ocean fish, whether commercially obtained or self-caught. The water quality criterion discussed in this paragraph was based on possible exposure to methylmercury through the consumption of marine, not commercial, fish, as described in more detail on page 16014, column 3, in the second full paragraph.

(9) On page 16023, column 3, in the second full paragraph, in the second sentence, insert the phrase “at or” before the word “below” in both places.

This revision corrects an arithmetic error.

(10) On page 16024, column 2, in the second full paragraph, in the second sentence, delete the number “293” and insert in lieu thereof the number “394.”

This revision corrects an error in the summary of the public comments to accurately reflect the data provided by the commenters.

(11) On page 15999, footnote 14, in the second sentence, insert the word “not” before the word “adequate” The corrected sentence should read: “Section 112(m)(6) also requires EPA to promulgate additional regulations setting emission standards or control requirements, “in accordance with” section 112 and under the authority of section 112(m)(6), if EPA determines that the other provisions of section 112 are not adequate, and such regulations are appropriate and necessary to prevent serious adverse public health and environmental effects.”

This change corrects a typographical error. The word “not” was inadvertently omitted from the sentence and without that term, the sentence improperly summarizes CAA section 112(m)(6), which requires EPA to first determine if the other provisions of CAA section 112 are “adequate to prevent serious adverse effects to public health and serious or widespread environmental effects,” and then make an assessment based on that determination whether additional standards or control requirements are “necessary and appropriate.” (42 U.S.C. 7412(m)(6).”

(12) On page 16009, renumber sections “3.” and “4.” as sections “2.” and “3.,” respectively.

This revision corrects a typographical error, as the sections were improperly numbered.

(13) On page 16010, renumber section “C.” as section “B.”

See explanation provided in item 12, above.

(14) On page 16021, renumber section “5.” as section “3.”

See explanation provided in item 12, above.

(15) On page 16024, column 2, last paragraph, first sentence, delete the reference “VII.B.,” and insert in lieu thereof the reference “VI.B.”

This correction accurately cites the appropriate cross-reference.

(16) On page 16026, column 2, first full paragraph, delete the references “VII.D.” and “VII.E.,” and insert in lieu thereof the references “VI.D.” and “VI.E.,” respectively.

See explanation provided in item 15, above.

(17) On page 16027, column 3, first full paragraph, delete the reference “VII.E.,” and insert in lieu thereof the reference “VI.E.”

See explanation provided in item 15, above.

Under Executive Order 12866, Regulatory Planning and Review (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget (OMB). This action is not a “major rule” as defined by 5 U.S.C. 804(2). The technical corrections do not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Because EPA has made a “good cause” finding that this action is not subject to notice and comment requirements under the APA or any other statute, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of the UMRA.

The corrections do not have substantial direct effects on the States, or 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, Federalism (64 FR 43255, August 10, 1999).

Today's action also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13175, Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 9, 2000). The technical corrections also are not subject to Executive Order 13045, Protection of Children from Environmental Health and Safety Risks (62 FR 19885, April 23, 1997) because this action is not economically significant.

The corrections are not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001) because this action is not a significant regulatory action under Executive Order 12866.

The corrections do not involve changes to the technical standards related to test methods or monitoring methods; thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) do not apply.

The corrections also do not involve special consideration of environmental justice-related issues as required by Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the U.S. The EPA will submit a report containing this final action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the U.S. prior to publication of today's action in the Federal Register . Today's action is not a “major rule” as defined by 5 U.S.C. 804(2). The final rule will be effective on June 7, 2005.

The EPA's compliance with the above statutes and Executive Orders for the underlying rule is discussed in the March 29, 2005 Federal Register notice containing “EPA's revision to the December 2000 Regulatory Finding on the Emissions of Hazardous Air Pollutants from Electric Utility Steam Generating Units and the Removal of Coal- and Oil-Fired Electric Utility Steam Generating Units From the Section 112(c) List” (70 FR 15994).

The Federal Emergency Management Agency makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director of the Emergency Preparedness and Response Directorate has resolved any appeals resulting from this notification.

The modified BFEs are not listed for each community in this notice. However, this rule includes the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection.

The modifications are made pursuant to Section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities.

These modified BFEs are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.

The changes in BFEs are in accordance with 44 CFR 65.4.

This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared.

The Mitigation Division Director of the Emergency Preparedness and Response Directorate certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

This final rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

In 30 years of implementing the ESA, the Service has found that the designation of statutory critical habitat provides little additional protection to most listed species, while consuming significant amounts of conservation resources. The Service's present system for designating critical habitat is driven by litigation rather than biology, limits our ability to fully evaluate the science involved, consumes enormous agency resources, and imposes huge social and economic costs. The Service believes that additional agency discretion would allow our focus to return to those actions that provide the greatest benefit to the species most in need of protection.

While attention to and protection of habitat is paramount to successful conservation actions, we have consistently found that, in most circumstances, the designation of critical habitat is of little additional value for most listed species, yet it consumes large amounts of conservation resources. Sidle (1987) stated, “Because the ESA can protect species with and without critical habitat designation, critical habitat designation may be redundant to the other consultation requirements of section 7.” Currently, only 473 species, or 38 percent of the 1,253 listed species in the U.S. under the jurisdiction of the Service, have designated critical habitat.

We address the habitat needs of all 1,253 listed species through conservation mechanisms such as listing, section 7 consultations, the Section 4 recovery planning process, the Section 9 protective prohibitions of unauthorized take, Section 6 funding to the States, and the Section 10 incidental take permit process. In the case of listed plants, such as Allium munzii , Section 9 of the Act prohibits any person subject to the jurisdiction of the United States from removing and reducing to possession any such species from areas under Federal jurisdiction; maliciously damaging or destroying any such species on such area; or removing, cutting, digging up, or damaging or destroying any such species on any other area in knowing violation of any law or regulation of any state or in the course of any violation of a State criminal trespass law. The Service believes that it is these measures that may make the difference between extinction and survival for many species.

We note, however, that two courts found our definition of adverse modification to be invalid (March 15, 2001, decision of the United States Court of Appeals for the Fifth Circuit, Sierra Club v. U.S. Fish and Wildlife Service et al. , F.3d 434, and the August 6, 2004, Ninth Circuit judicial opinion, Gifford Pinchot Task Force v. United States Fish and Wildlife Service ). In response to these decisions, we are reviewing the regulatory definition of adverse modification in relation to the conservation of the species.

We have been inundated with lawsuits regarding critical habitat designation, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected the Service to an ever-increasing series of court orders and court-approved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves the Service with little ability to prioritize its activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs.

The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits and to comply with the growing number of adverse court orders. As a result, the Service's own proposals to undertake conservation actions based on biological priorities are significantly delayed.

The accelerated schedules of court-ordered designations have left the Service with almost no ability to provide for additional public participation beyond that minimally required by the Administrative Procedures Act (APA), the Act, and the Service's implementing regulations, or to take additional time for review of comments and information to ensure the rule has addressed all the pertinent issues before making decisions on listing and critical habitat proposals, due to the risks associated with noncompliance with judicially imposed deadlines. This in turn fosters a second round of litigation in which those who will suffer adverse impacts from these decisions challenge them. The cycle of litigation appears endless, is very expensive, and in the final analysis provides little additional protection to listed species.

The costs resulting from the designation include legal costs, the cost of preparation and publication of the designation, the analysis of the economic effects and the cost of requesting and responding to public comment, and in some cases the costs of compliance with the National Environmental Policy Act (NEPA); all are part of the cost of critical habitat designation. These costs result in minimal benefits to the species that are not already afforded by the protections of the Act enumerated earlier, and they directly reduce the funds available for direct and tangible conservation actions.

We intend to discuss only those topics directly relevant to the designation of critical habitat in this final rule. For more information on Allium munzii , please refer to the final listing rule published in the Federal Register on October 13, 1998 (63 FR 54975), proposed critical habitat rule published in the Federal Register on June 4, 2004 (69 FR 31569), and the notice of availability of the draft economic analysis (DEA) and reopening of the public comment period for Allium munzii published in the Federal Register on December 1, 2004 (69 FR 69878).

Please refer to the proposed rule to designate critical habitat for Allium munzii (69 FR 31569) and the notice of availability of the draft economic analysis and reopening of the public comment period for Allium munzii (69 FR 69878) for more information on previous Federal actions concerning Munz's onion.

We requested written comments from the public on the proposed designation of critical habitat for Allium munzii (69 FR 31569) and the notice of availability of the draft economic analysis and reopening of the public comment period for Allium munzii ( 69 FR 69878). We also contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule.

During the comment period that opened on June 4, 2004, and closed on August 3, 2004, we received 7 comment letters directly addressing the proposed critical habitat designation: 3 from peer reviewers, 1 from a Federal agency, and 3 from organizations or individuals. During the comment period that opened on December 1, 2004, and closed on January 3, 2005, we received 4 comment letters directly addressing the proposed critical habitat designation and the draft economic analysis. Of these latter comments, 1 was from a Federal agency, and 3 were from organizations. One commenter concurred with the designation of critical habitat for Allium munzii and 8 commenters recommended modifications to the proposed designation. Comments received were grouped into general issues specifically relating to the proposed critical habitat designation for Allium munzii and are addressed in the following summary and incorporated into the final rule as appropriate. We did not receive any requests for a public hearing.

In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from five knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles. We received responses from three of the peer reviewers. The peer reviewers provided additional information, clarifications, and suggestions to improve the final critical habitat rule. These recommendations included clarification of occurrences, improvements to the primary constituent elements, identification of essential occurrences, and correction of factual errors. Two of the peer reviewers recommended that the essential habitat and occurrences within the Western Riverside County Multiple-Species Habitat Conservation Plan (MSHCP) be designated as critical habitat. One of the peer reviewers agreed with the designation of critical habitat at Elsinore Peak and expressed cautious support of the areas excluded within the Western Riverside County MSHCP under section 4(b)(2) of the Act. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.

We reviewed all comments received from the peer reviewers and the public for substantive issues and new information regarding critical habitat for Allium munzii , and addressed them in the following summary.

Comment 1. Two peer reviewers disagreed with our exclusion of critical habitat within the Western Riverside County MSHCP based on our justification of the “presumed effectiveness of approved and draft habitat conservation plans, in particular, the Western Riverside County MSHCP,” and their concerns that “known localities within the jurisdiction of the MSHCP currently have no established reserves, or proposed management procedures for this species.”

Our Response. Under section 4(b)(2) of the Act, the “Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such areas as part of critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.” We evaluated the benefits of excluding critical habitat against the benefits of including critical habitat within approved Habitat Conservation Plans (HCPs), including the Western Riverside County MSHCP, the Rancho Bella Vista HCP, and the Long-Term Stephen's Kangaroo Rat (SKR) HCP. A major benefit of exclusion is that it will allow us to continue to work with the signatory agencies in Riverside County (for the Western Riverside County MSHCP) in a spirit of cooperation and partnership and to encourage landowners, local jurisdictions, and other entities to work cooperatively with us to develop HCPs in other areas. A possible benefit of including critical habitat on such lands is education about the species and its habitat needs. However, we considered that this educational benefit has largely already been met by the public participation process that occurred in the development of approved HCPs, including the Western Riverside County MSHCP, and therefore, that this would not be a particularly important benefit of critical habitat designation. Maps depicting the distribution and location of Allium munzii are widely available to the public as part of the Western Riverside County MSHCP planning process. We have concluded, therefore, that the benefits of excluding critical habitat from such lands exceed the value of including the lands as critical habitat. See additional discussion under “Exclusions Under Section 4(b)(2) of the Act.”

Our approval of the Western Riverside County MSHCP indicates our strong belief that the plan will be effective in conserving Allium munzii. The Western Riverside County MSHCP provides specific conservation objectives to ensure that suitable habitat and known populations of Allium munzii will persist. Under the Western Riverside County MSHCP, at least 21,260 ac (8,604 ha) of modeled habitat for Allium munzii will be included in the MSHCP Conservation Area. The permittees will implement management and monitoring practices within the Additional Reserve Lands, including surveys for Allium munzii. Cooperative management and monitoring are anticipated on public and PQP lands. Surveys for Allium munzii will be conducted at least every 8 years to verify occupancy at a minimum of 75 percent of the known locations. If surveys document that the distribution of Allium munzii has declined below this 75 percent threshold, management measures will be triggered, as appropriate, to meet the species-specific objectives. Other management actions described in the MSHCP include addressing competition with non-native plant species, clay mining, off-road vehicle use, and disking activities. Implementation of these management actions will help to avoid and minimize adverse effects to Allium munzii. Thus, the Western Riverside County MSHCP establishes reserves and management procedures for Allium munzii.

The Western Riverside County MSHCP provides a greater level of management for Allium munzii on private lands than would designation of critical habitat on private lands. The designation of critical habitat only affects activities conducted, funded, or permitted by Federal agencies. Section 7(a)(2) of the Act requires Federal agencies to ensure that actions they fund, authorize, or carry out are not likely to jeopardize the continued existence of any endangered or threatened species or destroy or adversely modify critical habitat. Critical habitat designation on private (non-Federal) lands would not obligate or trigger any requirement by a private (non-Federal) landowner to manage their lands to conserve Allium munzii .

All known occurrences of this species would be protected: (1) By approved HCPs (Rancho Bella Vista and SKR HCPs); (2) on existing PQP lands, proposed conceptual reserve design lands, and lands targeted for conservation within the Western Riverside County MSCHP; and (3) in areas where a conservation strategy authorized through the section 7 consultation process has provided for protection and long-term management of Allium munzii . Thus, we have concluded that the exclusion of such lands would not result in the extinction of Allium munzii . Please see “Relationship of Critical Habitat to Approved Habitat Conservation Plans and Other Approved Conservation Strategies” for a more detailed discussion.

Comment 2. Two peer reviewers recommended that critical habitat be designated for additional known occurrences/populations and areas of suitable clay soils. These are: (1) Known occurrences at Harford Springs and Harford Springs County Park and adjacent clay habitat on the Gavilan Plateau (Elemental Occurrence (EO) 2); (2) all of the occurrences on and adjacent to Estelle Mountain (EO 9); (3) an occurrence south of Steele Peak (no element occurrence identified, possibly EO 15); (4) all of the habitat on Elsinore Peak and all localities on Elsinore Peak (EO 13); (5) an occurrence in the Temescal Wash near Indian Wash, and the area between Indian Wash and Horsethief Wash south of DePalma Road in Temescal Canyon (EO3 and EO8); (6) occurrences on the southern flank of Alberhill Mountain (EO 6); (7) occurrences on Bachelor Mountain (EO 12); and (8) an occurrence on North Domenigoni Hills (EO 10).

One of the peer reviewers did not recommend critical habitat for the occurrences at Skunk Hollow (Rancho Bella Vista HCP) (EO 4), Briggs and Scott Roads (EO 14), or Indian Truck Trail and De Palma Roads (Sycamore Creek) (EO 7) because of the small size, fragmentation, and impacts to these populations. The peer reviewers did not provide the EO numbers for these populations and we attempted to match their descriptions with the EO for our response.

Our Response. Considered together, the three categories of (1) approved HCPs (Rancho Bella Vista and SKR HCPs); (2) existing PQP lands, proposed conceptual reserve design lands, and lands targeted for conservation within the Western Riverside County MSCHP; and (3) lands where conservation strategies approved through the section 7 consultation process have provided protection, long-term management, and funding to conserve Allium munzii provide a significant level of conservation for Allium munzii . Thus, all of the occurrences of Allium munzii within (1) approved HCPs (Rancho Bella Vista and SKR); (2) existing PQP lands, proposed conceptual reserve design lands, and lands targeted for conservation within the Western Riverside County MSCHP; and (3) on lands where conservation strategies approved through the section 7 consultation process have provided protection, long-term management, and funding to conserve Allium munzii .

Within PQP lands, the species occurs on lands in: (1) The southern border of Harford Springs County Park (owned by the County of Riverside) (EO 2); (2) Barry Jones Wetland Mitigation Bank (previously called the Skunk Hollow Wetland Mitigation Bank) (private lands) (EO 4); (3) Lake Mathews—Estelle Mountain Reserve northwest of the Estelle Mountain summit in the Gavilan Hills (owned by the County of Riverside) (EO 9); (4) Southwestern Riverside County Multi-Species Reserve (SRCMSR) in the north Domenigoni Hills on either side of Old Mine Road (owned by the Metropolitan Water District) (EO 10); (5) SRCMSR lands at Lake Skinner (owned by the Bureau of Land Management and Metropolitan Water District) (EO 11); (6) SRCMSR lands on the south slope of Bachelor Mountain (owned by the Metropolitan Water District) (EO 12); and (7) Elsinore Peak on the Cleveland National Forest (EO 13).

Within proposed conceptual reserve lands, lands specifically targeted to be included within the Reserve, and/or within the Narrow Endemic Plant Species Survey Area, the plant occurs in: (1) Private lands across Ida Leona Road in the Gavilan Hills adjacent to Harford Springs County Park (EO 2); (2) private land immediately adjacent to the Sycamore Creek development, northwest of I-15 and Indian Truck Trail Road, in Temescal Canyon (EO 3 and EO 8); (3) Upper Dawson Canyon in the Gavilan Hills (EO 5); (4) private land on the south side of Alberhill Mountain, west of I-15, in the City of Lake Elsinore (EO 6); (5) private land east of I-15, west of De Palma's Italian Village, between Indian Canyon and Horsethief Canyon (EO7); (6) west of Lindenberger Road, 0.8 miles (mi) south of Scott Road, southeast of Sun City on a 36.3-ac (15 ha) parcel conserved as the result of a conservation strategy approved through the section 7 consultation process regarding a Sempra gas pipeline (Service 2001) and on a 65.5-ac (27 ha) parcel conserved as a result of a conservation strategy approved through the section 7 consultation process associated with the Warmington development (Service 2002) (EO 14); (7) northern boundary of the City of Lake Elsinore, within the North Peak Specific Plan Area on lands purchased and conserved by Riverside County (EO 15); (8) 1.2 mi northeast of the intersection of Lake Street and I-15 (EO 16); (9) land owned by Metropolitan Water District of Southern California on the north slope of Bachelor Mountain (EO 17); (10) Temescal Valley, west of I-15, between Nichols Road and Riverside Drive, on a low hill adjacent to Collier Marsh (Alberhill Marsh); and (11) near Temescal Wash (EO 18).

In addition, at least 21,260 ac (8,604 ha) of modeled habitat for Allium munzii will be included in the MSHCP Conservation Area (Service 2004). According to the Western Riverside County MSHCP, at least 13 localities within Temescal Valley and the southwestern portion of Plan Area, including the following Core Areas, are to be included within the MSHCP Conservation Area (County of Riverside 2002): (1) Harford Springs Park (EO 2); and (2) a population on private lands in Temescal Valley (EO 5), Alberhill (EO 6), De Palma Road (EO 7), Estelle Mountain (EO 9), Domenigoni Hills (EO 10), Lake Skinner (EO 11), Bachelor Mountain (EO 12), Elsinore Peak (EO 13), Scott Road (EO 14), North Peak (EO 15), and northeast of Alberhill (EO 16). Populations that are currently on public lands or within preservation areas include Harford Springs Park (about half the plants and habitat) (EO 2) and at Estelle Mountain (EO 7), North Domenigoni Hills (EO 10), Bachelor Mountain (two populations) (EO 11 and EO 12), North Peak (EO 15), and Cleveland National Forest lands at Elsinore Peak (EO 13) (County of Riverside 2002).

The occurrence at the Sycamore Creek development (EO 3 and EO 8) receives management (funded through the homeowners' association; the management plan is to be provided to the resource agencies prior to any construction actions by the developer) as part of a conservation strategy approved through the section 7 consultation process. The occurrence on private lands west of Lindenberger Road (EO 14) receives management as part of a conservation strategy approved through section 7 consultation processes for a Southern California Gas Company gas pipeline and the Warmington development.

Thus, the nine occurrences recommended to be designated as critical habitat by the peer reviewers (EO 2, EO 3, EO 8, EO 6, EO 9, EO 10, EO 12, EO 13, and EO 15) are already conserved (1) within approved HCPs (Rancho Bella Vista and SKR HCPs); (2) on existing PQP lands, proposed conceptual reserve design lands, and lands targeted for conservation within the Western Riverside County MSCHP; and (3) on lands where conservation strategies approved through the section 7 consultation process have provided protection, long-term management, and funding to conserve Allium munzii . We have excluded these lands, except for the occurrence on U.S. Forest Service lands, under section 4(b)(2) of the Act in this final rule.

Comment 3. One peer reviewer noted that the large population of Allium munzii on State of California lands immediately adjacent to the Cleveland National Forest lands at Elsinore Peak is subject to increasing levels of off-highway vehicle (OHV) use. The commenter expressed concern that excluding this area from critical habitat may lead to further OHV (and other) damage to this population and would not give the State of California incentive to prevent this impact.

Our Response. The Cleveland National Forest requested approval from the State Lands Commission to place barriers on State lands to discourage unauthorized OHV use in this area (U.S. Forest Service 2002). We do not agree that the exclusion of critical habitat from the State lands may lead to further OHV damage or that the designation of critical habitat would give the State an incentive to prevent this activity. Designation of critical habitat only affects activities conducted, funded, or permitted by Federal agencies. Activities lacking any Federal nexus, such as OHV activity on State lands, would not be affected by the critical habitat designation.

Comment 4. One peer reviewer suggested that the Service “needs to designate areas that are “critical” to the species, and review the current management and protection procedures.

Our Response. The definition of critical habitat includes areas containing the physical or biological features (1) essential to the conservation of the species and (2) which may require special management considerations or protection. If the physical or biological features are not essential or may not require special management considerations or protection, then the area would not meet the definition of critical habitat. Please see “Special Management Considerations and Protection” for a further discussion of this subject.

Comment 5. Two peer reviewers (and a public review commenter) questioned the number and description of occurrences of Allium munzii described in the proposed rule.

Our Response. The proposed rule stated that there are 19 occurrences of Allium munzii according to the California Natural Diversity Database (CNDDB) (CNDDB 2004). We have reviewed the CNDDB records to clarify any discrepancies in the number of occurrences of Allium munzii (Service 2003). The CNDDB reported 21 element occurrences (EO) (Service 2003). Of these records, EO 1 is extirpated and EO 19 is an error. Thus, we concluded that there were 19 occurrences. Our further review of the CNDDB indicates that EO 20 and EO 21 are older records and have not been recently verified, and EO 3 and EO 8 may represent the same population and should be treated as a single occurrence. Hence, in the final rule, we describe 16 extant populations of Allium munzii (see also “Criteria Used to Identify Critical Habitat” for a listing of these 16 populations).

Comment 1. Several commenters disagreed with our exclusion of critical habitat within approved HCPs including the Western Riverside County MSHCP. They stated that we did not provide any scientific or biological reasons for not including critical habitat within the boundaries of HCPs including the Western Riverside County MSHCP.

Our Response. We disagree. Please see our response to Peer Reviewer Comment 1 for a detailed explanation.

Comment 2. A commenter recommended that critical habitat be expanded to include important populations within HCP areas, including the extensive population on Alberhill, Harford County Park and adjacent lands, and North Peak.

Our Response. We disagree. Please see our response to Peer Reviewer Comment 2 for a detailed explanation.

Comment 3. A commenter stated that the Cleveland National Forest should not be designated as critical habitat because these lands are within the boundary of the Western Riverside County MSHCP.

Our Response. We agree that the Cleveland National Forest lands are within the Western Riverside County MSHCP Plan Area. However, unlike private landowners and local jurisdictions, Federal agencies, such as the U.S. Forest Service, do not receive take authorization for any species covered by the Western Riverside County MSHCP. While lands within the Cleveland National Forest were considered as part of the environmental baseline, the U.S. Forest Service is not a signatory agency to the Western Riverside County MSHCP, nor is it they bound to comply with the regional HCP. Thus, we have only excluded private lands within the Western Riverside County MSHCP from critical habitat designation in this and other final critical habitat designation rules.

Comment 1. We received several comment letters related to the draft economic analysis (DEA) and proposed designation of critical habitat for the Lake Elsinore Advanced Pumped Storage Project (LEAPS).

Our Response. We analyzed the information contained in the comment letters, soil maps, aerial photography, and distribution of Allium munzii populations along the easternmost edge of the proposed critical habitat unit. No known populations of Allium munzii occur within the LEAPS transmission line corridor, and the nearest population is west of the corridor on soils mapped as Bosanko clay (identified as a clay soil in the primary constituent element #1) and Las Posas gravelly loam (identified as a soil series of sedimentary or igneous origin with a clay subsoil in primary constituent element #1). The soil maps indicate that the LEAPS transmission corridor crosses soils mapped as Cieneba-rock outcrop complex and the available information indicates that Allium munzii does not occur on this soil type. Thus, we have not included the LEAPS transmission corridor in the designation of critical habitat in the final rule. Since no critical habitat is being designated within the LEAPS transmission corridor, we did not, and do not need to, consider economic impacts related to the LEAPS project.

Comment 2. A commenter stated that the DEA fails to clearly state that critical habitat has no legal implications on private lands and no burden on his/her property absent Federal nexus.

Our Response. A description of the legal implications of critical habitat can be found in this Final Rule under “Effects of Critical Habitat Designation.”

Comment 3. We received several comments concerning the scope of the economic analysis. One commenter stated that distributing costs among other endangered species likely to co-exist with Allium munzii violates the co-extensive analysis that is required, while another commenter stated that the cost of Allium munzii conservation should not include costs associated with the listing of Allium munzii or other regulatory requirements (such as NEPA) that afford protection to the species.

Our Response. The primary purpose of the economic analysis is to estimate the potential economic impacts associated with the designation of critical habitat for Allium munzii. The Act defines critical habitat to mean those specific areas that are essential to the conservation of the species. The Act also defines conservation to mean the use of all methods and procedures necessary to bring any endangered species or threatened species to the point at which the measures of the Act are no longer necessary. Thus we interpret the Act to mean that the economic analysis should include all of the economic impacts associated with the conservation of the species, which may include some of the effects associated with listing because the species was listed prior to the proposed designation of critical habitat. We note that the Act generally requires critical habitat to be designated at the time of listing, and, that had we conducted an economic analysis at that time, the impacts associated with listing would not be readily distinguishable from those associated with critical habitat designation.

The DEA discusses other relevant regulations and protection efforts for other listed species that include Allium munzii and its habitat. In general, the analysis errs conservatively in order to make certain the economic effects have not been missed. It treats as “co-extensive” other Federal and State requirements that may result in overlapping protection measures ( e.g. , California Environmental Quality Act) for the plant. In some cases, however, non-habitat-related regulations will limit land use activities within critical habitat in ways that will directly or indirectly benefit Allium munzii or its habitat ( e.g. , local zoning ordinances). These impacts were not considered to be “co-extensive” with Allium munzii listing or designation for two reasons. First, such impacts would occur even if Allium munzii were not listed. Second, we must be able to differentiate economic impacts solely associated with the conservation of Allium munzii and its habitat in order to understand whether the benefit of excluding any particular area from Allium munzii critical habitat outweighs the benefit of including the area.

The economic analysis distributes the cost of conserving Allium munzii habitat equally among the number of other listed species likely to co-exist with Allium munzii as indicated by the historical consultations. None of the past Allium munzii consultations focused solely on Munz's onion but rather on other listed animal species co-occurring in the area. Within a biological opinion that covers several species, we are unable to accurately segregate out the cost for an individual species from the rest of the species covered in the biological opinion.

Comment 5. A few commenters stated that the DEA failed to address the implications of the Gifford Pinchot Task Force v. United States Fish and Wildlife Service (USFWS), 378 F.3d 1059, 1069 (Ninth Circuit 2004) ruling on future Allium munzii conservation costs.

Our Response: The Service notes that a recent Ninth Circuit judicial opinion, Gifford Pinchot Task Force v. USFWS , has invalidated the Service's regulation defining destruction or adverse modification of critical habitat. The Service is currently reviewing the decision to determine what effect it (and to a limited extent Center for Biological Diversity v. Bureau of Land Management (Case No. C-03-2509-SI, N.D. Cal.)) may have on the outcome of consultations pursuant to section 7 of the Act.

Comment 6. A commenter stated that additional explanation should be provided concerning the reasons behind the cost variation for the three historical real estate projects involving Service consultation on Allium munzii.

Our Response. The EA estimates the historical costs associated with the Allium munzii conservation efforts on real estate development projects based on information contained within the three past consultations that included Allium munzii (Rancho Bella Vista, Sycamore Creek development, and the Warmington Murrieta Scott Road LLC subdivision). Each consultation addressed the impacts of the proposed action not only to Allium munzii but also to other listed species. The impacts to each project varied based on the amount of habitat being affected and the degree of impact. In general, projects that had to preserve more habitat had higher economic costs because the land could not be put to its highest economic use.

Comment 7. A commenter stated that the DEA overestimates the historical cost associated with the conservation of Allium munzii because it inappropriately assumes that the cost affiliated with the conservation of Allium munzii is equally weighted with the other covered species when in fact conservation efforts for animal species involve higher costs than plant species.

Our Response. While animal species may in fact involve higher level of monitoring and active management efforts, the DEA errs conservatively in order to make certain the past economic effects associated with the conservation of Allium munzii have not been understated.

Comment 8. A commenter stated that the $30,000 estimate for Allium munzii 's portion of the Western Riverside MSHCP preparation cost is an overestimation, because the section in the document addressing the plant is boilerplate rather than compiled from detailed research.

Our Response. The DEA estimates the portion of the MSHCP preparation cost attributable to Allium munzii by equally distributing the total cost of the MSHCP preparation among 145 species covered by the MSHCP. While other covered species may in fact involve higher level of research and documentation, the DEA errs conservatively in order to make certain economic effects have not been understated. Although this is a simplistic approach for estimating the historical coextensive cost for Allium munzii , we do not believe that the error introduced by this method will have a significant effect on our final critical habitat decision.

Comment 9. A commenter stated that the DEA fails to acknowledge any benefit of conserving a species that is threatened by extinction from developments. The same commenter also requested that the final EA incorporate a quantitative estimate of benefits of open space since conservation of Allium munzii contributes to overall preservation of open space.

Our Response. Section 4(b)(2) of the Act requires the Secretary to designate critical habitat based on the best scientific data available after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat. Our approach for estimating economic impacts includes both economic efficiency and distributional effects. The measurement of economic efficiency is based on the concept of opportunity costs, which reflects the value of goods and services foregone in order to comply with the effects of the designation ( e.g. , lost economic opportunity associated with restrictions on land use). Where data are available, our analyses do attempt to measure the net economic impact. For example, the analysis recognizes the potential for benefits associated with the preservation of open space. It describes that in certain cases real estate development that effectively incorporates the Allium munzii habitat set-aside on-site might realize a value premium typically associated with additional open space. Any such premium will offset land preservation costs borne by landowners/developers. However, while this scenario remains a possibility, reliable data revealing the premium that the market places on nearby open space in Southern California is not readily available. Moreover, the value premium associated with habitat preservation is likely to be limited given that recreational uses associated with habitat preserves may be generally restricted to low-impact activities.

The value of open space, along with other ancillary benefits, reflects broader social values, which are not the same as economic impacts. While the Secretary must consider economic and other relevant impacts as part of the final decision-making process under section 4(b)(2) of the Act, the Act explicitly states that it is the government's policy to conserve all threatened and endangered species and the ecosystems upon which they depend. Thus we believe that explicit consideration of broader social values for the species and its habitat, beyond the more traditionally defined economic impacts, is not necessary as Congress has already clarified the social importance for us. As a practical matter, we note the difficulty in being able to develop credible estimates of such values as they are not readily observed through typical market transactions.

Comment 10. A commenter stated that the DEA should explain how future management costs of Allium munzii habitat were estimated given that management requirements have not been clearly identified by the Western Riverside MSHCP/Natural Community Conservation Plans (NCCP).

Our Response. The MSHCP budget reveals an average annual management cost of approximately $84 per acre, in 2004 dollars. Because the MSHCP does not list specific management requirements for Allium munzii , the Service relies on this overall per-acre cost to estimate future management cost for Allium munzii. We believe this to be a reasonable estimate to use in forecasting conservation costs.

Comment 11. A commenter stated that, contrary to a statement made in the DEA that not every acre in the habitat contains Allium munzii or the primary constituent elements of habitat, the essential habitats all have primary constituent elements by definition.

Our Response. This statement has been corrected in the EA.

Section 4(i) of the Act states, the Secretary shall submit to the State agency a written justification for her failure to adopt regulations consistent with the State agency's comments or petition. The California Department of Fish and Game (CDFG) did not provide comments on the proposed rule to designate critical habitat for Allium munzii or the draft economic analysis for critical habitat for Allium munzii. In the case of other proposed rules for critical habitat, CDFG has supported the exclusion of NCCPs/HCPs that covered the particular species of interest. Consistent with their previous comments on other critical habitat rules, we have excluded critical habitat for Allium munzii from lands within the Western Riverside County MSHCP and other approved HCPs. No State lands are designated as critical habitat for Allium munzii.

We are not including critical habitat along the eastern boundary of the Western Riverside County Unit because the area does not contain the primary constituent elements for Allium munzii. The soil maps indicate that the LEAPS transmission corridor crosses soils mapped as Cieneba-rock outcrop complex and the available information indicates that Allium munzii does not occur on this soil type. Thus, we have not included the LEAPS transmission corridor in the designation of critical habitat in the final rule. This revision has resulted in a reduction from the proposed critical habitat of 227 ac (92 ha) to 176 ac (71 ha) in the final rule.

Critical habitat is defined in section 3 of the Act as (i) the specific areas within the geographic area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection; and (ii) specific areas outside the geographic area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. “Conservation” means the use of all methods and procedures that are necessary to bring an endangered or a threatened species to the point at which listing under the Act is no longer necessary. No specific areas outside the geographical area occupied by Allium munzii at the time of listing are designated as critical habitat in this final rule. The area designated as critical habitat (Elsinore Peak in the Cleveland National Forest) was described in the final listing rule (63 FR 54975).

Critical habitat receives protection under section 7 of the Act through the prohibition against destruction or adverse modification of critical habitat with regard to actions carried out, funded, or authorized by a Federal agency. Section 7 requires consultation on Federal actions that are likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow government or public access to private lands.

To be included in a critical habitat designation, the habitat within the area occupied by the species must first have features that are “essential to the conservation of the species.” Critical habitat designations identify, to the extent known using the best scientific and commercial data available, habitat areas that provide essential life cycle needs of the species ( i.e. , areas on which are found the primary constituent elements, as defined at 50 CFR 424.12(b)).

Habitat occupied at the time of listing may be included in critical habitat only if the essential features thereon may require special management or protection. Thus, we do not include areas where existing management is sufficient to conserve the species. (As discussed below, such areas may also be excluded from critical habitat pursuant to section 4(b)(2).) Accordingly, when the best available scientific and commercial data do not demonstrate that the conservation needs of the species so require, we will not designate critical habitat in areas outside the geographic area occupied by the species at the time of listing. An area currently occupied by the species but that was not known to be occupied at the time of listing will likely be essential to the conservation of the species and, therefore, will be included in the critical habitat designation.

The Service's Policy on Information Standards Under the Endangered Species Act, published in the Federal Register on July 1, 1994 (59 FR 34271), and Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) and the associated Information Quality Guidelines issued by the Service, provide criteria, establish procedures, and provide guidance to ensure that decisions made by the Service represent the best scientific and commercial data available. They require Service biologists to the extent consistent with the Act and with the use of the best scientific and commercial data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When determining which areas are critical habitat, a primary source of information is generally the listing package for the species. Additional information sources include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge. All information is used in accordance with the provisions of Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) and the associated Information Quality Guidelines issued by the Service.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that may eventually be determined to be necessary for the recovery of the species. For these reasons, critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery.

Areas that support populations, but are outside the critical habitat designation, will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available information at the time of the action. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome.

As required by section 4(b)(1)(A) of the Act, we used the best scientific and commercial data available in determining areas that are essential to the conservation of Allium munzii. These included data from research and survey observations published in peer-reviewed articles and other documents, regional Geographic Information System (GIS) vegetation, soil, and species coverages (including layers for Riverside County), and data compiled in the CNDDB. In addition, information provided in comments on the proposed critical habitat designation and draft economic analysis were evaluated and considered in the development of the final designation for Allium munzii. We designated no areas outside of the geographic area presently occupied by the species.

After all the information about the known occurrences of Allium munzii was compiled, we created maps indicating the essential habitat associated with each of the occurrences. We used the information outlined above to aid in this task. The essential habitat was mapped using GIS and refined using topographical and aerial map coverages. These essential habitat areas were further refined by discussing each area in detail with Fish and Wildlife Service biologists familiar with each area.

After creating a GIS coverage of the essential areas, we created legal descriptions of the essential areas. We used a 100-meter grid to establish Universal Transverse Mercator (UTM) North American Datum 27 (NAD 27) coordinates which, when connected, provided the boundaries of the essential areas.

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas to propose as critical habitat, we are required to base critical habitat determinations on the best scientific and commercial data available and to consider those physical and biological features (primary constituent elements (PCEs)) that are essential to the conservation of the species, and that may require special management considerations and protection. These include, but are not limited to: Space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, and rearing (or development) of offspring; and habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.

The specific primary constituent elements or biological and physical features required for Allium munzii are derived from the biological needs of the species as described in the background section of the proposed critical habitat rule (69 FR 31569).

Allium munzii is restricted to mesic clay soils in western Riverside County, California, along the southern edge of the Perris basin (primary constituent elements #1 and #2). The clay soils are scattered in a band several miles wide and extending 40 miles from Gavilan Hills to west of Temescal Canyon and Lake Elsinore at the eastern foothills of the Santa Ana Mountains and along the Elsinore Fault Zone to the southwestern foothills of the San Jacinto Mountains near Lake Skinner. Clay soil associations include Altamont, Auld, Bosanko, Claypit and Porterville clay soil types. At least one population (North Domenigoni Hills) was reported by Bramlet in 1991 to be associated with pyroxenite outcrops instead of clay (CNDDB 2003). Rounded cobbles and boulders are embedded within clay, which has a sticky, adobe consistency when wet and large cracks when dry. Allium munzii is typically found on the more mesic sites within the clay deposits (Boyd 1988). These mesic areas within the clay deposits typically support grassland vegetation within a surrounding scrub community. Allium munzii occurs at elevations from 984 to 3,511 feet (ft) (300 to 1,070 meters (m)), and on level or slightly sloping lands.

The Western Riverside County Unit contains Bosanko clay soils identified as a clay soil series of sedimentary origin as well as Las Posas gravelly loam (identified as a soil series of sedimentary or igneous origin with a clay subsoil) at a suitable elevation for this species (primary constituent element #1 and #3). This unit is also within open native and non-native grassland plant communities (primary constituent element #1). The soils, aspect, elevation, and plant communities present in this unit provide space for individual and population growth. The soils, aspect, and elevation of the unit (primary constituent element #3) provide food, water, air, light, minerals and other nutritional and physiological requirements for Allium munzii .

Allium munzii is typically found in open native grasslands and, increasingly, non-native grasslands, which can be either the dominant community or found in a mosaic with Riversidean sage scrub, scrub oak chaparral, chamise chaparral, coast live oak woodland, or peninsular juniper woodland and scrub (Holland 1986). Based upon the dominant species, the plant communities where Allium munzii is found have been further divided into series which include, but are not limited to, California annual grassland, nodding needlegrass, purple needlegrass, foothill needlegrass, black sage, white sage, California buckwheat, California buckwheat-white sage, California sagebrush, California sagebrush-black sage, California sagebrush-California buckwheat, mixed sage, chamise, chamise-black sage, coast live oak, scrub oak, and California juniper (Sawyer and Keeler-Wolf 1994).

A characteristic “clay soil flora” is associated with the island-like clay deposits in southwestern Riverside County. This includes herbaceous annuals, such as Harpagonella palmeri (Palmer's grappling hook), Chorizanthe polygonoides var. longispina (knot-weed spine flower), Achyrachaena mollis , Ancistrocarphus filagineus , Convolvulus simulans (small-flowered morning-glory), Erodium macrophyllum , and Microseris doulasii spp. Platycarpha (small-flowered microseris), and herbaceous perennials, such as Fritillaria biflora (chocolate lily), Sanicula bipinnatifida (purple sanicle), S. arguta (snakeroot), Lomatium utriculatum (common lomatium), L. dasycarpum (lace parsnip), Dodecatheon clevelandii (Cleveland's shooting star), Bloomeria crocea (goldenstar), Chlorogalum parviflorum (soaproot), Dudleya multicaulis (many-stemmed dudleya), Allium haematochiton (red-skinned onion) and A. munzii (Boyd 1988). The plant communities within this unit provide sites for reproduction, germination, or pollination.

The area designated as critical habitat is within the Cleveland National Forest (see also Western Riverside County Unit, Riverside County, California for a description of this unit). This locality represents the southwesternmost and highest elevation occurrence of Allium munzii . The Elsinore Peak population is considered to be the most undisturbed and pristine of any of the known occurrences of this species (Boyd and Mistretta 1991) (primary constituent element #2). This population is estimated to be more than 1,000 plants and is ranked as a top conservation priority by a working group assembled by the California Department of Fish and Game (Mistretta 1993). The Forest Service developed the Allium munzii Species Management Guide to ensure that “National Forest lands are managed to maintain viable populations of all native plants and animals” (U.S. Forest Service 1992). Thus, this location represents a significant habitat that is protected from disturbance and is within the historical geographical distribution of this species.

Based on our current knowledge of the life history, biology, and ecology of the species and the requirements of the habitat to sustain the essential life history functions of the species, we have determined that primary constituent elements for Allium munzii are:

(1) Clay soil series of sedimentary origin ( e.g. , Altamont, Auld, Bosanko, Claypit, Porterville), or clay lenses (pockets of clay soils) of such that may be found as unmapped inclusions in other soil series, or soil series of sedimentary or igneous origin with a clay subsoil ( e.g. , Cajalco, Las Posas, Vallecitos), found on level or slightly sloping landscapes; generally between the elevations of 985 ft and 3,500 ft (300 m and 1,068 m) above mean sea level (AMSL), and as part of open native or non-native grassland plant communities and “clay soil flora” which can occur in a mosaic with Riversidean sage scrub, chamise chaparral, scrub oak chaparral, coast live oak woodland, and peninsular juniper woodland and scrub; or

(2) Alluvial soil series of sedimentary or igneous origin ( e.g. , Greenfield, Ramona, Placentia, Temescal) and terrace escarpment soils found as part of alluvial fans underlying open native or non-native grassland plant communities that can occur in a mosaic with Riversidean sage scrub generally between the elevations of 985 ft and 3,500 ft (300 m and 1,068 m) AMSL, or Pyroxenite deposits of igneous origin found on Bachelor Mountain as part of non-native grassland and Riversidean sage scrub generally between the elevations of 985 ft and 3,500 ft (300 m and 1,068 m) AMSL; and

(3) Clay soils or other soil substrate as described above with intact, natural surface and subsurface structure that have been minimally altered or unaltered by ground-disturbing activities ( e.g. , disked, graded, excavated, re-contoured); and,

(4) Within areas of suitable clay soils, microhabitats that are moister than surrounding areas because of (A) north or northeast exposure or (B) seasonally available moisture from surface or subsurface runoff.

All areas designated as critical habitat for Allium munzii are within the geographic area occupied by the species, were known to be occupied at the time of listing, and contain one or more primary constituent elements ( e.g. , soil, associated plant community) essential for its conservation.

All areas known to support extant populations of Allium munzii are considered essential habitat for the species because they include those physical or biological features essential to the conservation of the species and which may require special management considerations or protection. Allium munzii is known only from a narrow geographical range and, within that range, is limited to clay soils. Currently 16 populations of this plant are known to exist. Extant populations of Allium munzii occur at the following locations: (1) Southern border of Harford Springs County Park and extending onto private lands across Ida Leona Road in the Gavilan Hills (population estimates from surveys between 1986 and 1998 range from 2,000 to 51,000 plants) (EO 2); (2) private land immediately adjacent to the Sycamore Creek development, northwest of I-15 and Indian Truck Trail Road, in Temescal Canyon (estimate of approximately 300 plants) (EO 3 and 8); (3) Barry Jones Wetland Mitigation Bank (Skunk Hollow Wetland Conservation Bank) (approximately 250 plants) (EO 4); (4) private land on the south flank of Upper Dawson Canyon in the Gavilan Hills (estimate of approximately 2,000 plants) (EO 5); (5) private land on the south side of Alberhill Mountain, west of I-15, in the City of Lake Elsinore (estimate of approximately 7,700 plants) (EO 6); (6) private land east of I-15, west of De Palma's Italian Village, between Indian Canyon and Horsethief Canyon (estimate of approximately 1,000 plants) (EO7); (7) Lake Mathews—Estelle Mountain Reserve northwest of the Estelle Mountain summit in the Gavilan Hills (estimate of approximately 2,000 plants based on a 1986 survey) (EO 9); (8) Southwestern Riverside County Multi-Species Reserve (SRCMSR) in the north Domenigoni Hills on either side of Old Mine Road (estimate of approximately 440 plants) (EO 10); (9) south slope of Bachelor Mountain, along a maintenance road associated with Lake Skinner Dam (population estimates from surveys conducted between 1989 and 1992 range from 200 and 4,400 plants) (EO 11); (10) south slope of Bachelor Mountain, about a mile east of the population described above (#9) (estimate of approximately 150 plants) (EO 12); (11) Elsinore Peak, west of the City of Lake Elsinore, on the Cleveland National Forest and adjacent State of California lands (population estimate of more than 1,000 plants) (EO 13); (12) west of Lindenberger Road, 0.8 miles south of Scott Road, southeast of Sun City on a 36.3-acre (15 ha) parcel and on a 65.5-acre (27 ha) associated with the Warmington development (estimate of approximately 1,000 plants prior to project impacts) (EO 14); (13) northern boundary of the City of Lake Elsinore, within the North Peak Specific Plan Area on lands purchased and conserved by Riverside County (estimate of several thousand plants) (EO 15); (14) private lands northeast of Alberhill, 1.0 miles north of I-15 and 1.2 miles northeast of the intersection of Lake Street and I-15 (estimate of approximately 300 plants) (EO 16); (15) land owned by Metropolitan Water District of Southern California on the north slope of Bachelor Mountain (estimate of 2 plants) (EO 17); and (16) Temescal Valley, west of I-15, between Nichols Road and Riverside Drive, on a low hill adjacent to Collier Marsh (Alberhill Marsh) and near Temescal Wash (population estimate not known) (EO 18).

We are designating critical habitat on lands we have determined were occupied at the time of listing and contain the primary constituent elements and those additional areas found to be essential to the conservation of Allium munzii .

Section 10(a)(1)(B) of the Act authorizes us to issue permits for the take of listed species incidental to otherwise lawful activities. An incidental take permit application must be supported by a habitat conservation plan (HCP) that identifies conservation measures that the permittee agrees to implement for the species to minimize and mitigate the impacts of the requested incidental take. We often exclude non-Federal public lands and private lands that are covered by an existing operative HCP and executed implementation agreement (IA) under section 10(a)(1)(B) of the Act from designated critical habitat because the benefits of exclusion outweigh the benefits of inclusion as discussed in section 4(b)(2) of the Act. All but one occurrence of Allium munzii are in areas subject to: (1) Management plans related to approved HCPs (Rancho Bella Vista and SKR HCPs); (2) existing PQP lands, proposed conceptual reserve design lands, and lands targeted for conservation within the Western Riverside County MSCHP; and (3) conservation strategies approved through the section 7 consultation process that have provided protection, long-term management, and funding to conserve Allium munzii .

When determining critical habitat boundaries, we made every effort to avoid designating developed areas such as buildings, paved areas, radio and communication towers, and other structures that lack PCEs for Allium munzii . Any such structures inadvertently left inside designated critical habitat boundaries are not considered part of the designated unit. This also applies to the land on which such structures sit directly. Therefore, Federal actions limited to these areas would not trigger section 7 consultations, unless they affect the species and/or primary constituent elements in adjacent critical habitat.

A brief discussion of the area designated as critical habitat is provided in the description below. Additional detailed documentation concerning the essential nature of this area is contained in our supporting record for this rulemaking.

When designating critical habitat, we assess whether the areas determined to be essential for conservation may require special management considerations or protections. As we undertake the process of designating critical habitat for a species, we first evaluate lands defined by those physical and biological features essential to the conservation of the species for inclusion in the designation pursuant to section 3(5)(A) of the Act. Secondly, we then evaluate lands defined by those features to assess whether they may require special management considerations or protection.

As discussed throughout this rule, Allium munzii and its habitat are threatened by a number of factors. Threats to those features that define essential habitat (primary constituent elements) are caused by various types of development, dry-land farming activities, off-road vehicle activity, clay mining, and competition with non-native plants. Habitat loss continues to be the greatest threat to Allium munzii . It is essential for the survival of this species to protect those features that define the remaining essential habitat, through purchase or special management plans, from irreversible threats and habitat conversion.

The Western Riverside County Unit is entirely on Federal lands within the Cleveland National Forest (Cleveland NF). The Cleveland NF has developed a Species Management Guide for Allium munzii ( Allium munzii ) (Guide) (U.S. Forest Service 1992). The Guide, plus subsequent documentation from Cleveland NF (U.S. Forest Service 2002), describes threats to Allium munzii from off-road vehicles, competition from non-native plants, wildfire management, development, habitat fragmentation, and species viability. The ongoing and pervasive nature of these threats demonstrates that the PCEs for Allium munzii require ongoing special management considerations or protection within this unit. For example, maintaining the integrity of the clay soils (primary constituent elements #1 and #2) to support Allium munzii requires the ongoing efforts by the Forest Service to control unauthorized off-road vehicle use and grazing in habitats occupied by Allium munzii . Grazing would have unacceptably high impacts on Allium munzii through trampling and compaction of the soil, and enhancement of non-native grass species populations (U.S. Forest Service 1992). Protecting surrounding lands from development, grading, and erosion that maintain the mesic microhabitat conditions require continued management oversight by the Forest Service (primary constituent element #3). In addition, fire management to sustain Allium munzii is under Forest Service control.

The Guide includes a large number of management actions designed to reduce these specific threats to Allium munzii within the Cleveland NF: (1) Future development at the Elsinore Peak electronic site will be designed to avoid adverse effects to Allium munzii ; (2) illegal off-road vehicle activity in the Elsinore Peak area of the Trabuco Ranger District and other areas of Allium munzii habitat, as needed, will be eliminated through construction of barriers and fencing; (3) future management of the slopes of Elsinore Peak and other areas of Allium munzii habitat allows minimal development; (4) fire management of habitat includes a number of specific prescriptions ( e.g. , related to “free-burn” areas, fuelbreaks and fire suppression activities, earth-moving on slopes, location of fire camps, and site rehabilitation after fire; (5) the parcel of land in Section 36 that supports Allium munzii will be a high priority target for acquisition in future land exchanges; (6) the Cleveland NF will confer with California Department of Fish and Game and the Service regarding possible outplantings of Allium munzii and monitor outplantings; and (7) no new grazing allotments or special use permits for grazing will be issued for the Elsinore Peak area.

The occurrences on non-Federal lands that are: (1) Within approved HCPs (Rancho Bella Vista and SKR HCPs); (2) on existing PQP lands, proposed conceptual reserve design lands, and lands targeted for conservation within the Western Riverside County MSCHP; and (3) on lands where conservation strategies approved through the section 7 consultation process have provided protection, long-term management, and funding to conserve Allium munzii may require special management considerations or protection. Occurrences within the Western Riverside County MSHCP are threatened by competition with non-native plant species, clay mining, off-road vehicle use, and disking activities. The Western Riverside County MSHCP proposes that the Reserve Managers will manage known and future occurrences of this species to minimize these threats, and the persistence of 75 percent of the known locations will be monitored every 8 years. Other management actions described in the Western Riverside County MSHCP include addressing competition with non-native plant species, clay mining, off-road vehicle use, and disking activities.

The Rancho Bella Vista HCP provides both interim and long-term management to address threats to PCEs from development, invasive plants, trampling and fire. The SKR HCP provides for the establishment of core reserves, adaptive management of the reserve, and management and restoration of habitats for the Stephens' kangaroo rat. The core preserves and management plans reduce threats to the PCEs for Munz's onion by protecting habitat and limiting fragmentation of habitat from future urban and agricultural development; controlling trespass and unauthorized uses of preserve lands by the installation of barriers, gates, signage, and fences; fire management plans including fire break management, fire controls, and fire suppression logistics; and controlling recreation. Protecting habitat will maintain and minimize disturbances to suitable soils and vegetation communities associated with Allium munzii. Access and recreation management will protect occurrences of Allium munzii from impacts by off-highway vehicles and trampling. The fire management planning will avoid occurrences and maintain the vegetation communities associated with Allium munzii.

The occurrence at the Sycamore Creek development (EO 3 and EO 8) was threatened by activities that would disturb or remove vegetation and Altamont clay soils. The occurrence on private lands west of Lindenberger Road (EO 14) was faced with similar threats to vegetation and soil disturbance and removal. Prior to the conservation of this occurrence, this population may have been affected by light grazing and/or dry land farming (CNDDB 2003).

Designated critical habitat includes Allium munzii habitat at a single location in the species' range and is located entirely within Riverside County, California. The majority of essential habitat for this species has been excluded under section 4(b)(2) of the Act. As a result, only Federal lands are designated as critical habitat. Table 1 depicts areas determined to be essential to the Allium munzii , lands being excluded from critical habitat pursuant to section 4(b)(2) of the Act, and the approximate area designated as critical habitat for the Allium munzii by land ownership.

As discussed above, the lands that are: (1) Approved HCPs (Rancho Bella Vista and SKR HCPs); (2) on existing PQP lands, proposed conceptual reserve design lands, and lands targeted for conservation within the Western Riverside County MSCHP; and (3) on lands where conservation strategies approved through the section 7 consultation process have provided protection, long-term management, and funding to conserve Allium munzii currently, or will, provide for the conservation of all known occurrences of Allium munzii. Only the habitat located on U.S. Forest Service lands is designated as critical habitat. This area was occupied at the time of listing, contains the primary constituent elements, is essential to the conservation of the species, requires special management, and the activities of Federal agencies are not covered under the Western Riverside County MSHCP section 10(a)(1)(B) permit. A map of the areas identified as essential habitat can be viewed on our Web site at http://carlsbad.fws.gov.

Designated critical habitat is located in the vicinity of Elsinore Peak in the Cleveland National Forest. The easternmost stand of Allium munzii at this location is considered to be the most undisturbed and pristine of any of the known occurrences of this species (Boyd and Mistretta 1991). The land identified for this unit of critical habitat supports the primary constituent elements discussed above. The habitat is characterized by mixed native/non-native grassland and chaparral vegetation. Allium munzii occurs primarily in the grassland and the transitional vegetation between the grassland and chaparral. The soils are primarily mapped as Bosanko clay, Cieneba-blasingame-rock outcrop complex, and Cieneba-rock outcrop complex. The stands of Allium munzii are associated with mesic microhabitats, such as the mesic exposures on cobble deposits and at the bottom of slopes. This population is estimated at 5,000 plants and is ranked as a top conservation priority by a working group assembled by the California Department of Fish and Game (Mistretta 1993).

This site represents the southwesternmost extent of the range for Allium munzii. The habitat at this location is high quality. This site also supports three other species of wild onion, A. haematochition , A. lacunosum , and A. peninsulare. This composition of four Allium species at a single location is important to understanding the evolutionary history and divergence of the Allium genus in southern California. The southwestern portion of the essential habitat at this site is located on land that will be subject to the terms and conditions of the Western Riverside County MSHCP. All essential habitat on non-Federal lands within the Western Riverside County MSHCP Plan Area is excluded from critical habitat under section 4(b)(2) of the Act. Only the essential habitat that may require special management considerations or protection on Forest Service land is designated as critical habitat.

Section 7 of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to destroy or adversely modify critical habitat. In our regulations at 50 CFR 402.2, we define destruction or adverse modification as “a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to: Alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical.” We are currently reviewing the regulatory definition of adverse modification in relation to the conservation of the species.

Section 7(a) of the Act requires Federal agencies, including the Service, to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is proposed or designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402.

Section 7(a)(4) of the Act requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a proposed species or result in destruction or adverse modification of proposed critical habitat. Conference reports provide conservation recommendations to assist the agency in eliminating conflicts that may be caused by the proposed action. We may issue a formal conference report if requested by a Federal agency. Formal conference reports on proposed critical habitat contain an opinion that is prepared according to 50 CFR 402.14, as if critical habitat were designated. We may adopt the formal conference report as the biological opinion when the critical habitat is designated, if no substantial new information or changes in the action alter the content of the opinion (see 50 CFR 402.10(d)). The conservation recommendations in a conference report are advisory.

If a species is listed or critical habitat is designated, section 7(a)(2) requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Through this consultation, the action agency ensures that its actions do not destroy or adversely modify critical habitat.

When we issue a biological opinion concluding that a project is likely to result in the destruction or adverse modification of critical habitat, we also provide reasonable and prudent alternatives to the project, if any are identifiable. “Reasonable and prudent alternatives” are defined at 50 CFR 402.02 as alternative actions identified during consultation that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that the Director believes would avoid destruction or adverse modification of critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.

Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where critical habitat is subsequently designated and the Federal agency has retained discretionary involvement or control over the action or such discretionary involvement or control is authorized by law. Consequently, some Federal agencies may request reinitiation of consultation or conference with us on actions for which formal consultation has been completed, if those actions may affect designated critical habitat or adversely modify or destroy proposed critical habitat.

Federal activities that may affect Allium munzii or its critical habitat will require section 7 consultation. Activities on private or State lands requiring a permit from a Federal agency, such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act, a section 10(a)(1)(B) permit from the Service, or some other Federal action, including funding ( e.g. , Federal Highway Administration or Federal Emergency Management Agency funding), will also continue to be subject to the section 7 consultation process. Federal actions not affecting listed species or critical habitat and actions on non-Federal and private lands that are not federally funded, authorized, or permitted do not require section 7 consultation.

Section 4(b)(8) of the Act requires us to briefly evaluate and describe in any proposed or final regulation that designates critical habitat those activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation. Activities that may destroy or adversely modify critical habitat may also jeopardize the continued existence of the Allium munzii. Federal activities that, when carried out, may adversely affect critical habitat for the Allium munzii include, but are not limited to:

(1) Actions that would permanently alter the function of the underlying clay soil layer to hold and retain water. Damage or alternation of the clay soil layer would eliminate the function of this primary constituent element for providing space for individual and population growth and for normal behavior; water and physiological requirements; and sites for breeding, reproduction, and pollination. Actions that could permanently alter the function of the underlying soil layer to hold and retain water include, but are not limited to, mining, grading or earthmoving work that disrupts or rips into the soil layer.

(2) Actions that would permanently degrade the plant community or the mesic microhabitats. Degradation of the plant community or microhabitat would reduce the ability of these primary constituent elements to provide space for individual and population growth; water and physiological requirements; and sites for breeding, reproduction, and pollination. Actions that could degrade these elements include, but are not limited to, erosion of sediments from fill material, and soils disturbed by grading, earthmoving work, off-highway vehicle use, grazing, vegetation removal, or road construction within the watershed of the mesic microhabitats.

(3) Any activity that could alter watershed or soil characteristics in ways that would appreciably alter or reduce the quality or quantity of surface and subsurface water flow needed to maintain Allium munzii habitat. These activities could include, but are not limited to, altering the natural fire regime; development, including road building; livestock grazing; and vegetation manipulation such as clearing or grubbing in the watershed upslope from A. munzii.

(4) Road construction and maintenance, right-of-way designation, and regulation of agricultural activities, or any activity funded or carried out by the Department of Transportation or Department of Agriculture that results in discharge of dredged or fill material, or mechanized land clearing of Allium munzii habitat.

All lands designated as critical habitat are within the geographical area occupied by the species and are necessary for the conservation of Allium munzii. Federal agencies already consult with us on actions that may affect Allium munzii to ensure that their actions do not jeopardize the continued existence of the species. Thus, we do not anticipate substantial additional regulatory protection will result from critical habitat designation.

If you have questions regarding whether specific activities will constitute destruction or adverse modification of critical habitat, contact the Field Supervisor, Carlsbad Fish and Wildlife Office (see ADDRESSES section). Requests for copies of the regulations on listed wildlife and plants and inquiries about prohibitions and permits may be addressed to the U.S. Fish and Wildlife Service, Branch of Endangered Species, 911 N.E. 11th Ave, Portland, OR 97232 (telephone 503/231-2063; facsimile 503/231-6243).

Section 4(b)(2) of the Act states that critical habitat shall be designated, and revised, on the basis of the best available scientific data available after taking into consideration the economic impact, effects to national security, and any other relevant impact, of specifying any particular area as critical habitat. An area may be excluded from critical habitat if it is determined, following an analysis, that the benefits of such exclusion outweigh the benefits of specifying a particular area as critical habitat, unless the failure to designate such area as critical habitat will result in the extinction of the species. Consequently, we may exclude an area from designated critical habitat based on economic impacts, effects to national security, or other relevant impacts such as preservation of conservation partnerships, if we determine the benefits of excluding an area from critical habitat outweigh the benefits of including the area in critical habitat, provided the action of excluding the area will not result in the extinction of the species.

In our critical habitat designations we have used the provisions outlined in section 4(b)(2) of the Act to evaluate those specific areas that are proposed for designation as critical habitat and those areas which are subsequently finalized ( i.e. , designated). We have applied the provisions of this section of the Act to lands essential to the conservation of the subject species to evaluate them and either exclude them from final critical habitat or not include them in proposed critical habitat. Lands which we have either excluded from or not included in critical habitat based on those provisions include but are not limited to those covered by: (1) Legally operative HCPs that cover the species and provide assurances that the conservation measures for the species will be implemented and effective; (2) draft HCPs that cover the species, have undergone public review and comment, and provide assurances that the conservation measures for the species will be implemented and effective ( i.e. , pending HCPs); (3) Tribal conservation plans that cover the species and provide assurances that the conservation measures for the species will be implemented and effective; (4) State conservation plans that provide assurances that the conservation measures for the species will be implemented and effective; and (5) Service National Wildlife Refuge System Comprehensive Conservation Plans that provide assurances that the conservation measures for the species will be implemented and effective. Within the essential habitat for Allium munzii , there are no tribal lands or lands owned by the Department of Defense.

Section 4(b)(2) of the Act requires us to consider other relevant impacts, in addition to economic impacts, when designating critical habitat. Section 10(a)(1)(B) of the Act authorizes us to issue permits for the take of listed wildlife species incidental to otherwise lawful activities. Development of an HCP is a prerequisite for the issuance of an incidental take permit pursuant to section 10(a)(1)(B) of the Act. An incidental take permit application must be supported by an HCP that identifies conservation measures that the permittee agrees to implement for the species to minimize and mitigate the impacts of the permitted incidental take.

Under section 4(b)(2) of the Act, we have excluded critical habitat from non-Federal lands within: (1) Approved HCPs (Rancho Bella Vista and SKR HCPs); and (2) existing PQP lands, proposed conceptual reserve design lands, and lands targeted for conservation within the Western Riverside County MSCHP. We believe the benefits of excluding lands within these legally operative HCPs from the final critical habitat designation will outweigh the benefits of including them.

In addition, we have excluded three areas where conservation strategies approved through the section 7 consultation process have provided protection, long-term management, and funding to conserve Allium munzii . Again, we believe the benefits of excluding these lands from the final critical habitat designation outweigh the benefits of including them. The analysis which led us to the conclusion that the benefits of excluding these areas exceed the benefits of designating them as critical habitat, and will not result in the extinction of the species, follows.

Allium munzii is a covered species under the Western Riverside County MSHCP. The Western Riverside County MSHCP has three conservation objectives to conserve and monitor Allium munzii populations. First, the MSHCP Conservation Area includes at least 21,260 acres of modeled habitat (grassland, coastal sage scrub, chaparral and peninsular juniper woodland between 300 and 1,000 m in the Riverside Lowlands and Santa Ana Mountains Bioregions). This will include at least 2,070 acres of clay soils: Altamont (190 acres), Auld (250 acres), Bosanko (600 acres), Claypit (100 acres), and Porterville (930 acres) soils underlying the suitable habitat. Second, the MSHCP Conservation Area includes at least 13 occurrences within Temescal Valley and the southwestern portion of the Plan Area, including the following Core Areas: Harford Springs Park, privately owned EO 5 population in Temescal Valley, Alberhill, De Palma Rd, Estelle Mountain, Domenigoni Hills, Lake Skinner, Bachelor Mountain, Elsinore Peak, Scott Road, North Peak, and northeast of Alberhill (EO 16). Third, as part of the Western Riverside County MSHCP, surveys will be conducted for Allium munzii as part of the project review process for public and private projects within the Narrow Endemic Plant Species survey area where suitable habitat is present (see Narrow Endemic Plant Species Survey Area Map, Figure 6-1 of the MSHCP, Volume I). Allium munzii located as a result of survey efforts shall be conserved in accordance with procedures described within Section 6.1.3 of the MSHCP, Volume I. In addition, the MSHCP proposes that the Reserve Managers will manage known and future occurrences of this species for competition with non-native plant species, clay mining, off-road vehicle use, and disking activities and that the persistence of 75 percent of the known locations will be monitored every 8 years. Other management actions described in the Western Riverside County MSHCP include addressing competition with non-native plant species, clay mining, off-road vehicle use, and disking activities. This management will help maintain Allium munzii populations and habitat.

The Rancho Bella Vista HCP provides both interim and long-term management for Allium munzii . Interim management actions were initiated upon approval of the HCP and included the maintenance of existing access controls, cleanup of conserved habitat areas where unauthorized trash dumping occurred, development of an interim management plan, and implementation of project-specific impact minimization and mitigation. Long-term management included transfer of the open space to an approved management agency, assessment of exotic plants, access control, development of a fire management plan and public information programs and materials, monitoring of sensitive plants and animals, and providing annual monitoring reports to the Service.

The SKR HCP provides for the establishment of core reserves, adaptive management of the core reserves to ensure the permanent conservation, preservation, restoration of SKR and SKR habitats, and limiting projects within the core reserves. While these lands were conserved for the Stephens' kangaroo rat, the core preserves and management plans also provide a conservation benefit to Allium munzii by reducing threats to PCEs by ground disturbance, alteration of vegetation, and invasive plants.

We have excluded three areas where conservation strategies approved through the section 7 consultation process have provided protection, long-term management, and funding to conserve Allium munzii . The strategy for the Sycamore Creek Development includes avoidance, preservation, and relocation of Altamont clay soils within an area protected by a conservation easement, and interim and long-term management and funding. To address effects to Allium munzii , the conservation strategy includes measures to avoid and preserve 18.3 acres of Altamont clay soils on site in the conservation easement; relocate additional clay soils from the development area to the conservation easement for the purposes of restoring Allium munzii and Riversidean sage scrub; release additional clay soils for passive recolonization through removal of the paved surface of De Palma Road; relocate occupied clay soils within areas proposed for development to the wildlife corridor and/or other suitable conserved habitat; provide a funding mechanism to provide management of the on site conservation areas for Allium munzii ; and prohibit the planting of invasive plant species adjacent to the corridor. The strategy for Southern California Gas Company includes the acquisition of a 36.3-acre site to conserve habitat for Allium munzii that includes 24.5 acres of Riversidean sage scrub and 11.82 acres of agricultural land, funding of a management endowment that assures the management of the 36.32-acres conservation area in perpetuity, and a preliminary and long-term management plan. The strategy for the Warmington Project includes avoidance and on-site conservation of the known occurrence of Allium munzii and adjacent potential habitat and the transfer of this 65.5-acre parcel of land to Riverside County Parks for protection and management. We concurred with the U.S. Army Corps of Engineers that the proposed project would not adversely affect Allium munzii because the applicant agreed to protect and conserve the known occurrence of Allium munzii and adjacent potential habitat in the south-central, 65.5-acre portion of the proposed site. In addition, Riverside County Parks has agreed to protect and manage this parcel for conservation.

A benefit of including an area as critical habitat designation is the education of landowners and the public regarding the potential conservation value of these areas. The inclusion of an area as critical habitat may focus and contribute to conservation efforts by other parties by clearly delineating areas of high conservation values for certain species. However, we believe that this educational benefit has largely been achieved for Allium munzii . The public outreach and environmental impact reviews required under NEPA for the Rancho Bella Vista and SKR HCPs and Western Riverside County MSHCP provided significant opportunities for public education regarding the conservation of the areas occupied by Allium munzii . For instance, the Western Riverside County MSHCP identifies specific populations of Allium munzii for conservation. Therefore, we believe the education benefits which might arise from a critical habitat designation have largely already been generated as a result of the significant outreach for the Rancho Bella Vista and SKR HCPs and Western Riverside County MSHCP. Moreover, in our final listing rule (63 FR 54975), we noted that, where the species occurs, landowners are aware of its presence and status since all occurrences were known, including the populations on Forest Service land in the Cleveland National Forest, Harford Springs County Park, and lands managed by the Riverside County Habitat Conservation Agency.

The areas excluded are currently occupied by the species. If these areas were designated as critical habitat, any actions with a Federal nexus that might adversely modify the critical habitat would require a consultation with us, as explained above, in the section of this notice entitled “Effects of Critical Habitat Designation.” However, inasmuch as this area is currently occupied by the species, consultation for activities with a Federal nexus which might adversely impact the species, including habitat modification, would be required even without the critical habitat designation.

The Western Riverside County MSHCP provides a greater level of management for Allium munzii on private lands than would designation of critical habitat on private lands. Thus, consultation for Federal activities that might adversely impact the species would be required even without the critical habitat designation. Moreover, inclusion of these non-Federal lands as critical habitat would not necessitate additional management and conservation activities that exceed the approved HCPs and their implementing agreements. The lands conserved by conservation strategies approved through the section 7 consultation process have no further Federal discretionary action and critical habitat would not result in the reinitiation of a section 7 consultation.

In summary, we believe that designating critical habitat on any non-Federal lands that are: (1) Within approved HCPs; (2) on existing PQP lands, proposed conceptual reserve design lands, and on lands targeted for conservation within the Western Riverside County MSCHP; and (3) on lands where conservation strategies approved through the section 7 consultation process have provided protection, long-term management, and funding to conserve Allium munzii would provide little additional Federal regulatory benefits for the species. Under the Gifford Pinchot decision, critical habitat designations may provide benefits to recovery of a species different than was previously believed, but it is not possible to quantify this at present. Because the excluded areas are occupied by the species, there must be consultation with the Service over any action with a Federal nexus that may affect these populations. The additional educational benefits that might arise from critical habitat designation have been largely accomplished through the process of public review and comment on the environmental impact documents which accompanied the development of the Rancho Bella Vista and SKR HCPs and Western Riverside County MSHCP.

The exclusion of critical habitat from non-Federal lands that are: (1) Within approved HCPs (Rancho Bella Vista and SKR HCPs); (2) on existing PQP lands, proposed conceptual reserve design lands, and lands targeted for conservation within the Western Riverside County MSCHP; and (3) on lands where conservation strategies approved through the section 7 consultation process have provided protection, long-term management, and funding to conserve Allium munzii would benefit permit holders and landowners because they would avoid any additional regulatory costs related to complying with the critical habitat designation. Since most of the occurrences of Allium munzii on non-Federal lands are within the three categories stated immediately preceding, available funding would be directed towards conservation rather than toward complying with critical habitat requirements that would not provide the species with additional benefits. Excluding these lands from critical habitat would ensure that funding remains available for implementation, rather than spending limited resources on ensuring compliance with the regulatory requirements potentially triggered by a critical habitat designation that would not be likely to provide additional benefit to the species.

We also believe that excluding these lands, and thus helping landowners avoid the additional costs that would result from the designation, will foster continued cooperation and partnership needed for implementation, and also that it will contribute to a more positive climate for HCPs and other active conservation measures that provide greater conservation benefits than would result from designation of critical habitat. In our final listing rule (63 FR 54975), we noted that the designation of critical habitat on lands owned by the Riverside County Habitat Conservation Agency would not change the way those lands are managed or require specific management actions to take place, and designation could be detrimental because of potential landowner misunderstandings about the real effects of critical habitat designation on private lands.

We do not believe that the benefits from the designation of critical habitat for lands we have decided to exclude—a limited educational benefit and very limited regulatory benefit, which are largely otherwise provided for, as discussed above—exceed the benefits of exclusion that would allow for the avoidance of increased regulatory costs and would provide little or no benefit and a potential reduction in available implementation funding for conservation actions with partners.

We also believe that excluding these lands, and thus helping landowners avoid the additional costs that would result from the designation, will contribute to a more positive climate for HCPs and other active conservation measures which provide greater conservation benefits than would result from designation of critical habitat. We therefore find that the benefits of excluding these areas from this designation of critical habitat outweigh the benefits of including them in the designation.

We believe that exclusion of the three categories—(1) lands within approved HCPs (Rancho Bella Vista and SKR HCPs); (2) existing PQP lands, proposed conceptual reserve design lands, and lands targeted for conservation within the Western Riverside County MSCHP; and (3) lands where conservation strategies approved through the section 7 consultation process have provided protection, long-term management, and funding to conserve Allium munzii —will not result in extinction of the species since these lands will be conserved and managed for the benefit of Allium munzii . Any actions with a Federal nexus that might adversely affect Allium munzii must undergo a consultation with the Service under the requirements of section 7 of the Act. The exclusions leave these protections unchanged. In addition, as discussed above, there are a substantial number of HCPs and other active conservation measures underway for the species, which provide greater conservation benefits than would result from a designation. There is accordingly no reason to believe that these exclusions would result in extinction of the species.

Section 4(b)(2) of the Act requires us to designate critical habitat on the basis of the best scientific and commercial information available and to consider the economic and other relevant impacts of designating a particular area as critical habitat. We may exclude areas from critical habitat upon a determination that the benefits of such exclusions outweigh the benefits of specifying such areas as critical habitat. We cannot exclude such areas from critical habitat when such exclusion will result in the extinction of the species concerned.

Following the publication of the proposed critical habitat designation, we conducted an economic analysis to estimate the potential economic effect of the designation. The draft analysis was made available for public review on December 1, 2004 (69 FR 69878). We accepted comments on the draft analysis until January 3, 2005.

The primary purpose of the economic analysis is to estimate the potential economic impacts associated with the designation of critical habitat for Allium munzii . This information is intended to assist the Secretary in making decisions about whether the benefits of excluding particular areas from the designation outweigh the benefits of including those areas in the designation. This economic analysis considers the economic efficiency effects that may result from the designation, including habitat protections that may be coextensive with the listing of the species. It also addresses distribution of impacts, including an assessment of the potential effects on small entities and the energy industry. This information can be used by the Secretary to assess whether the effects of the designation might unduly burden a particular group or economic sector.

This analysis focuses on the direct and indirect costs of the rule. However, economic impacts to land use activities can exist in the absence of critical habitat. These impacts may result from, for example, local zoning laws, State and natural resource laws, and enforceable management plans and best management practices applied by other State and Federal agencies. Economic impacts that result from these types of protections are not included in the analysis because they are considered to be part of the regulatory and policy baseline.

Only U.S. Forest Service lands at Elsinore Peak within the Cleveland National Forest were designated as critical habitat in the final rule. The economic analysis projected $33,849 in cost impacts from 2005 to 2025 from the designation of critical habitat on U.S. Forest Service lands. The analysis estimated that the future costs associated with conservation efforts for Allium munzii (prescribed burning, fence replacement, fencing electric tower site, and monitoring) by the U.S. Forest Service was $26,146. The administrative cost to the U.S. Forest Service associated with future section 7 consultations was estimated at $7,704. All other lands identified as essential habitat in the proposed rule were not designated as critical habitat in the final rule. No lands were excluded from critical habitat based on the economic impact under section 4(b)(2) of the Act.

The final economic analysis and supporting documents are included in our administrative record and may be obtained by contacting U.S. Fish and Wildlife Service, Branch of Endangered Species (see ADDRESSES section) or for downloading from the Internet at http://carlsbad.fws.gov .

In accordance with Executive Order 12866, this document is a significant rule in that it may raise novel legal and policy issues, but will not have an annual effect on the economy of $100 million or more or affect the economy in a material way. Due to the tight timeline for publication in the Federal Register , the Office of Management and Budget (OMB) has not formally reviewed this rule. As explained above, we prepared an economic analysis of this action. We used this analysis to meet the requirement of section 4(b)(2) of the Act to determine the economic consequences of designating the specific areas as critical habitat. We also used it to help determine whether to exclude any area from critical habitat, as provided for under section 4(b)(2), if we determine that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless we determine, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species.

Under the Regulatory Flexibility Act (RFA) (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities ( i.e. , small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a statement of factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA also amended the RFA to require a certification statement.

Small entities include small organizations, such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; as well as small businesses. Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we consider the types of activities that might trigger regulatory impacts under this rule, as well as the types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.

To determine if the rule could significantly affect a substantial number of small entities, we consider the number of small entities affected within particular types of economic activities ( e.g. , housing development, grazing, oil and gas production, timber harvesting). We apply the “substantial number” test individually to each industry to determine if certification is appropriate. However, the SBREFA does not explicitly define “substantial number” or “significant economic impact.” Consequently, to assess whether a “substantial number” of small entities is affected by this designation, this analysis considers the relative number of small entities likely to be impacted in an area. In some circumstances, especially with critical habitat designations of limited extent, we may aggregate across all industries and consider whether the total number of small entities affected is substantial. In estimating the number of small entities potentially affected, we also consider whether their activities have any Federal involvement.

Designation of critical habitat only affects activities conducted, funded, or permitted by Federal agencies. Some kinds of activities are unlikely to have any Federal involvement and so will not be affected by critical habitat designation. In areas where the species is present, Federal agencies already are required to consult with us under section 7 of the Act on activities they fund, permit, or implement that may affect Allium munzii . Federal agencies also must consult with us if their activities may affect critical habitat. Designation of critical habitat, therefore, could result in an additional economic impact on small entities due to the requirement to reinitiate consultation for ongoing Federal activities.

The draft economic analysis (September 22, 2004) predicted potential costs for both lands included in the final designation and proposed for exclusion. In this final designation, as in the proposed designation, only U.S. Forest Service lands at Elsinore Peak within the Cleveland National Forest were designated as critical habitat in the final rule; all other lands, namely private lands, have been excluded. Based on this analysis, it was determined that the total future impacts cost of the critical habitat designation to the Forest Service is $33,849, and the cost of past impacts is $9,101. In addition, it was projected that the Forest Service would incur an additional $7,704 in administrative costs for project modifications to forest management activities, such as access control (fencing and gating) and prescribed burning for Allium munzii conservation efforts.

The special permit holders for the electric tower site include Riverside County, Spectrasite Communications, Inc., Comcast Corporation, and Elsinore Peak Facility Corporation. Of the four special permit holders, Elsinore Peak Facility Corporation is the only small entity. With annual revenue of $150,000, the potential impact to this small business is $250 to $1,000 (in 1 year) and represents 0.2 to 0.4 percent of the revenue. No significant impact to small entities will likely result from this final designation of critical habitat. As such, we are certifying that this designation of critical habitat would not result in a significant impact on a substantial number of small entities and that a regulatory flexibility analysis is not required.

Under SBREFA, this rule is not a major rule. Our detailed assessment of the economic effects of this designation is described in the economic analysis. Based on the effects identified in the economic analysis, we believe that this rule will not have an annual effect on the economy of $100 million or more, will not cause a major increase in costs or prices for consumers, and will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. Refer to the final economic analysis for a discussion of the effects of this determination.

On May 18, 2001, the President issued Executive Order 13211 with respect to regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This final rule to designate critical habitat for Allium munzii is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required. We have not designated critical habitat on U.S. Forest Service lands that fall within the LEAPS corridor. Our analysis indicates that the primary constituent elements are not present along the easternmost boundary of the proposed critical habitat unit and, therefore, those lands have not been designated as critical habitat.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ), we make the following findings:

(a) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments or the private sector and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments,” with two exceptions. It excludes “a condition of federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the State, local, or Tribal governments “lack authority” to adjust accordingly. (At the time of enactment, these entitlement programs were: Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement.) “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.”

The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities who receive Federal funding, assistance, or permits or that otherwise require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply; nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.

(b) We do not believe that this rule will significantly or uniquely affect small governments because it will not produce a Federal mandate of $100 million or greater in any year, that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The designation of critical habitat imposes no obligations on State or local governments. As such, Small Government Agency Plan is not required.

In accordance with Executive Order 13132, the rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with DOI and Department of Commerce policy, we requested information from, and coordinated development of, this final critical habitat designation with appropriate State resource agencies in California. The designation of critical habitat in areas currently occupied by Allium munzii imposes no additional restrictions to those currently in place and, therefore, has little incremental impact on State and local governments and their activities. The designation may have some benefit to these governments in that the areas essential to the conservation of the species are more clearly defined, and the primary constituent elements of the habitat necessary to the survival of the species are specifically identified. While making this definition and identification does not alter where and what federally sponsored activities may occur, it may assist these local governments in long-range planning (rather than waiting for case-by-case section 7 consultations to occur).

In accordance with Executive Order 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We are designating critical habitat in accordance with the provisions of the Endangered Species Act. This final rule uses standard property descriptions and identifies the primary constituent elements within the designated areas to assist the public in understanding the habitat needs of Allium munzii.

This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act. This rule will not impose recordkeeping 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.

It is our position that, outside the Tenth Circuit, we do not need to prepare environmental analyses as defined by the NEPA in connection with designating critical habitat under the Endangered Species Act of 1973, as amended. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This assertion was upheld in the courts of the Ninth Circuit [ Douglas County v. Babbitt , 48 F.3d 1495 (9th Cir. Ore. 1995), cert. denied 116 S. Ct. 698 (1996).]

In accordance with 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 Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. We have determined that there are no tribal lands essential for the conservation of Allium munzii. Therefore, designation of critical habitat for Allium munzii has not been designated on Tribal lands.

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

The primary authors of this notice are the Carlsbad Fish and Wildlife Office staff (see ADDRESSES section).

The fishery for reef fish is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP) that was prepared by the Gulf of Mexico Fishery Management Council. This FMP was approved by NMFS and implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act by regulations at 50 CFR part 622. Regulations at 50 CFR 622.44(g)(1)(ii) require NMFS to reduce the commercial trip limit for Gulf deep-water and shallow-water grouper, combined, to 7,500 lb (3,402 kg) if on or before August 1 more than 50 percent of either the shallow-water grouper quota or red grouper quota is reached or is projected to be reached. Based on current statistics, NMFS has determined more than 50 percent of the 5.31 million-lb (2.41 million-kg) commercial quota for red grouper will be reached on June 8, 2005. Accordingly, NMFS is reducing the combined trip limit for deep-water grouper (misty grouper, snowy grouper, yellowedge grouper, warsaw grouper, and speckled hind) and shallow-water grouper (black grouper, gag, red grouper, yellowfin grouper, scamp, yellowmouth grouper, rock hind, and red hind) to 7,500 lb (3,402 kg) per trip in the Gulf of Mexico exclusive economic zone effective 12:01 a.m., local time, on June 9, 2005, through December 31, 2005, unless changed by further notification in the Federal Register .

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B), as such prior notice and opportunity for public comment is unnecessary and contrary to the public interest. Such procedures would be unnecessary because the rule itself already has been subject to notice and comment, and all that remains is to notify the public of the trip limit reduction. Allowing prior notice and opportunity for public comment is contrary to the public interest because of the need to immediately implement this action to protect the fishery since the capacity of the fishing fleet allows for rapid harvest of the quota. Prior notice and opportunity for public comment would require time and would potentially result in a harvest well in excess of the established quota.

For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

This action is taken under 50 CFR 622.44(g)(1)(ii) and is exempt from review under Executive Order 12866.

Atlantic tunas are managed under the dual authority of the Magnuson-Stevens Act and ATCA. ATCA authorizes the Secretary of Commerce (Secretary) to promulgate regulations, as may be necessary and appropriate, to implement ICCAT recommendations. The authority to issue regulations under the Magnuson-Stevens Act and ATCA has been delegated from the Secretary to the Assistant Administrator for Fisheries, NOAA (AA).

Background information about the need for the final initial BFT quota specifications and General category effort controls was provided in the preamble to the proposed rule (70 FR 14630, March 23, 2005), and is not repeated here. By this rule, NMFS announces the final initial BFT quota specifications and General category effort controls. In the proposed rule, comments were specifically requested on options to remain below the ICCAT recommended school BFT provision implemented at 50 CFR 635.27(a)(2) which requires that the proportion of school landings to overall U.S. landings remain below a four-year average of eight-percent. The final rule attempts to balance concerns regarding the eight-percent provision with requests for additional quota, higher retention limits, and longer seasons. NMFS will allocate the full proposed school BFT quota for the 2005 fishing year, and make inseason adjustments as necessary. In addition, NMFS may implement inseason adjustments to retention limits and seasons as discussed under the Comments and Responses section (Comment 4) below. Several comments regarding early retention limits and a late season Southern area fishery for the General category were also received, and are addressed under Comment 5.

Updated landings estimates for the 2004 fishing year were available for several BFT fishery categories, which affected quota allocations for 2005 in the Reserve and Longline categories, and are incorporated in this rule. Total additional landings of 36.7 mt in the Longline category occurred since the landings for the proposed rule were analyzed. These landings occurred in the subcategories as follows: 2.7 mt additional landings in the north (outside of the Northeast Distant area (NED)) and 34.0 mt additional in the south. The quota available for the 2005 fishing year in each of the Longline subcategories is 51.6 mt in the north (outside the NED), 64.7 mt in the NED, and 72.1 mt in the south. In addition, new information regarding the dead discards in the 2004 longline fishery showed that the Longline category had exceeded the 68 mt dead discard allowance by 3.8 mt, according to preliminary estimates for calendar year (CY) 2004. Pursuant to 50 CFR 635.27(a)(9)(iv), any dead discard overage must be subtracted from the category in which it occurred. Thus, the overall Longline category quota is reduced by 40.5 mt (36.7 mt + 3.8 mt) to a total of 188.4 mt and the Reserve category is reduced by 7.8 mt to account for the previously estimated dead discard underage for 2004.

Data became available since analyses for the proposed rule showing additional landings in the Angling category of 5.7 mt for the 2004 fishing year. Since data available for the proposed rule indicated that the Angling category had over-harvested the 2004 quota, the Reserve category for the 2005 fishing year was reduced by 5.7 mt in this final rule to account for the additional Angling category landings.

In accordance with the 2002 ICCAT quota recommendation, the ICCAT recommendation regarding the dead discard allowance, the 1999 HMS fishery management plan (1999 FMP) percentage shares for each of the domestic categories, and regulations regarding annual adjustments at § 635.27(a)(9)(ii), NMFS establishes final initial quota specifications for the 2005 fishing year as follows: General category—908.3 mt; Harpoon category—90.0 mt; Purse Seine category—530.0 mt; Angling category—288.6 mt; Longline category—188.4 mt; and Trap category—3.8 mt. Additionally, 45.9 mt are allocated to the Reserve category for inseason adjustments, including potentially providing for a late season General category fishery, or to cover scientific research collection and potential overharvest in any category except the Purse Seine category.

Based on the above initial specifications, the Angling category quota of 288.6 mt is further subdivided as follows: School BFT 117.2-mt, with 45.1 mt to the northern area (north of 39°18′ N. latitude), 50.4 mt to the southern area (south of 39°18′ N. latitude), plus 21.7 mt held in reserve; large school/small medium BFT 164.8-mt, with 77.8 mt to the northern area and 87.0 mt to the southern area; and large medium/giant BFT-6.6 mt, with 2.2 mt to the northern area and 4.4 mt to the southern area.

The 2002 ICCAT recommendation includes an annual 25 mt set-aside quota to account for bycatch of BFT related to directed longline fisheries in the NED. This set-aside quota is in addition to the overall incidental longline quota to be subdivided in accordance to the North/South allocation percentages mentioned below. Thus, the Longline category quota of 188.4 mt is subdivided as follows: 51.6 mt to pelagic longline vessels landing BFT north of 31° N. latitude and 72.1 mt to pelagic longline vessels landing BFT south of 31° N. latitude, and 64.7 mt (39.7 mt from 2004 + 25.0 mt for 2005) to account for bycatch of BFT related to directed pelagic longline fisheries in the NED.

For the last several years, NMFS has implemented General category time-period subquotas to increase the likelihood that fishing would continue throughout the entire General category season. The subquotas are consistent with the objectives of the 1999 FMP and are designed to address concerns regarding the allocation of fishing opportunities, to assist with distribution and achievement of optimum yield, to allow for a late season fishery, and to improve market conditions and scientific monitoring.

The regulations implementing the 1999 FMP divide the annual General category quota into three time-period subquotas as follows: 60 percent for June-August, 30 percent for September, and 10 percent for October-January. These percentages would be applied to the adjusted 2005 coastwide quota for the General category of 908.3 mt, minus 10.0 mt reserved for the New York Bight set-aside fishery. Therefore, of the available 898.3 mt coastwide quota, 539.0 mt would be available in the period beginning June 1 and ending August 31, 2005; 269.5 mt would be available in the period beginning September 1 and ending September 30, 2005; and 89.8 mt would be available in the period beginning October 1, 2005, and ending January 31, 2006.

In addition to time-period subquotas, NMFS also has implemented General category restricted fishing days (RFDs) to extend the General category fishing season. The RFDs are designed to address the same issues addressed by time-period subquotas and provide additional fine scale inseason flexibility. For the 2005 fishing year, NMFS establishes a series of solid blocks of RFDs to extend the General category for as long as possible through the October through January time-period.

Therefore, persons aboard vessels permitted in the General category are prohibited from fishing, including catch-and-release and tag-and-release, for BFT of all sizes on the following days while the fishery is open: all Fridays, Saturdays, and Sundays from November 18, 2005, through January 31, 2006, and Thursday, November 24, 2005, inclusive. These RFDs are implemented to improve distribution of fishing opportunities during the late season without increasing BFT mortality.

Comment 1: Many commenters supported the quota allocation in the proposed rule and the timing of the proposed rule and comment period relative to the start of the BFT season. One commenter stated that each category should be responsible for its overages and underages in future years.

Response: The final rule implements the proposed quota allocation, with minor modifications to account for minor additional recreational landings and minimal landings under experimental fishing permits, and a minor adjustment for dead discards. NMFS intends to publish annual specifications with enough notice and sufficient information so constituents can plan for the BFT fishing year. When setting annual specifications, NMFS strives to ensure each category's overages and underages are applied within the same category. However, transfer of quota among categories is provided for in regulations at 50 CFR 635.27(a)(8). In general, NMFS may choose to transfer quota among categories to maximize fishing opportunities and help achieve optimum yield in BFT fisheries, while this valuable stock undergoes rebuilding.

Comment 2: Some commenters supported the proposed RFDS while others did not. The commenters that supported the RFDs recognized that the RFDs would serve several purposes, including maximizing the market value of the catch by distributing the available quota over a longer time period and allowing the charter/headboat and recreational fleets the opportunity to fish without the presence of the commercial fleet. Commenters who opposed the RFDs noted that the RFDs would disadvantage non-resident commercial fishermen since they may have to pay for lodging or docking during non-fishing days and that some General category fishermen are only able to fish on the weekends. Commenters opposed to the RFDs also stated that waiving RFDs during previous fisheries had occasionally been untimely, and that weather would serve to moderate the landings for the last subperiod. A commenter also asked that the RFD for Thanksgiving be removed so that fishermen could have the option to fish.

Response: The final rule maintains the following schedule of RFDs, as proposed: Fridays, Saturdays, and Sundays between November 18 and January 31 and Thursday, November 24. The purpose of the RFDs is to assist with distribution and achievement of optimum yield, and to extend the late season General category fishery. NMFS recognizes that three day consecutive RFDs could negatively impact non-resident fishermen. The intent of the configuration of the RFDs is to separate the commercial and recreational fisheries temporally ( i.e. General category fishes Monday through Thursday, Angling category fishes Friday through Sunday) in order to improve conditions on the fishing grounds for both fisheries. Market value of BFT is expected to increase as a result of spreading the fishery out over the late season, and could mitigate any potential extra costs of non-resident fishermen for boat dockage and overnight fees. General category fishermen with situations such as other full time jobs on Monday through Friday may need to make other arrangements such as taking annual leave in order to fish during weekdays.

NMFS recognizes that the weather is unpredictable during this time period of the fishery ( i.e. November 18 through January 31), and that poor weather conditions may limit participation without the need for additional RFDs during this part of the season. Should BFT landings and catch rates during the late season fishery merit the waiving of RFDs, under 50 CFR 635.23(a)(4), NMFS may adjust the daily retention limits with a minimum three day notification to fishermen.

Thanksgiving (November 24, 2005) and other holidays during November through January for 2005-6 are maintained as RFDs to provide fishermen the opportunity to spend holidays with family or friends without disadvantaging them in the fishery. Providing U.S. holidays ( i.e. November 24, December 24-25, December 31 and January 1) as RFDs is a new approach for management of the General category fishery, and may be re-evaluated in future years based on experience gained from this year's fishery. In this year's fishery, holidays other than Thanksgiving happen to occur on Friday, Saturday, or Sunday, which have been established as RFDs for other purposes. Thus, the evaluation of providing holidays will rest on the experience of Thanksgiving day for 2005. As discussed above, RFDs can be waived as the season progresses if warranted by conditions in the fishery.

Comment 3: Several commenters stated a need to change the way BFT recreational landings are counted. Commenters stated that landings estimates in recent years were much higher than what seemed to be more reasonable estimates from prior years. Several commenters requested that a tail-tag program similar to the landings programs in place in North Carolina and Maryland be implemented on a coastwide basis. A commenter noted that real-time recreational landings estimates are necessary for inseason adjustments to keep the recreational fishery open during the entire season and from exceeding its quota. Similar comments regarding the need for improvement to HMS recreational landings statistics were presented by the HMS Advisory Panel during a March 2005 meeting.

Response: NMFS collects recreational landings data for HMS through the following three programs: (1) Large Pelagics Survey (LPS); (2) Automated Landing Reporting System (ALRS), and (3) comprehensive tagging of recreationally landed BFT in the states of Maryland and North Carolina. Each of these programs has limitations, and none of them provides real-time data on a coastwide basis, but they are the best data available. NMFS considers improving recreational landings data for HMS to be a high priority, and continues to investigate options for improving the reliability and utility of these data. Specifically, an ad hoc committee of NMFS scientists was formed to review the 2002 and 2003 methods and estimates of U.S. recreational fishery landing of BFT, white marlin, and blue marlin reported by NMFS to ICCAT to verify that the reported estimates were the most accurate that could be made with available data. A report stating the Committee's findings was released in December 2004. Based on the findings of this report, and consultations with the contractor that performs the LPS, methods of fish measurement and length/weight conversion will be further scrutinized. Proposals to implement an Atlantic-wide tail-tag monitoring program remain under discussion among coastal states and within NMFS and include issues regarding specifics of logistics, implementation, and establishment of partnerships with coastal states.

Comment 4: Many comments regarding the 2005 recreational season were received; most in response to the agency's request for comments on addressing ICCAT's eight-percent provision for school size BFT as set forth in 50 CFR 635.27(a)(2). In addition, a joint letter from several recreational advocacy groups outlined specific bag limits and season requests for the 2005 recreational fishing year, and several other commenters requested that sufficient quota be available for the southern area recreational fishery, and that it be extended in time beyond that available in previous years. The comments regarding the eight-percent tolerance provision received included support of a limit of one school size BFT per vessel per day and support of a one fish (any size category) limit per vessel per day. Shifting some of the quota into the large school/small medium subquota was supported by one commenter but not by another because of concern over increasing pressure on spawning fish. Several commenters suggested harvesting the entire school allotment for the next two years during 2005. Several other commenters expressed concern over postponing action to limit school size catches until 2006 and any other actions that could jeopardize a school size fishery in 2006. A commenter opposed completely prohibiting the catch of school size BFT in 2005 since it could negatively impact the charter industry. One commenter proposed use of a bonus tag system for additional harvest for vessels with a bonus tag and another commenter suggested that the recreational fishery be closed after October.

Response: To balance concerns regarding the eight-percent ICCAT provision with requests for more quota, higher retention limits and longer seasons, and to ensure that the Angling category does not exceed the school size subquota set forth in 50 CFR 635.27(a)(2), the final action maintains the proposed allocation of 117.2 mt in the school subquota. NMFS is considering several scenarios for season openings/closings and potential adjustments to Angling category retention limits. However, inseason establishment of retention limits and seasons per 50 CFR 635.23(b)(3) and 635.28(a)(3), respectively, takes into consideration information that is only available as the season progresses, including but not limited to catch rates and the availability of fish on the fishing grounds, and are accomplished during the season via inseason actions. Potential inseason adjustments to retention limits and seasons are being considered by NMFS, and are provided here to assist for constituent planning purposes. However, these adjustments are only potentially being considered for implementation, and may be adjusted based on incoming data as the season progresses. Retention limits under consideration include raised retention limits for the CHB fishery early in the season as well as during the month of September, and access for all recreational vessels to the large school/small medium size classes (47 up to 73 inches) from October 1, 2005 through March 15, 2006, after which the fishery may close. The limits under consideration would be in addition to the one trophy fish per year for Angling category vessels. The intent of this planned recreational season is to provide fishermen recreational opportunities throughout the geographic range of the fish and for the season to extend slightly longer than the average fishery for recent prior years. Establishing a bonus tag program is outside the scope of this action and may be considered as part of the ongoing research into the recreational data programs.

Comment 5: Several individuals commented on management of the General category, including requests from several commenters that a multiple fish retention limit be established for the start of the 2005 season. A commenter requested that any underage from the June through August subquota not be rolled over but moved to the reserve category for harvest by the southern area fishery. Several commenters requested that 150 mt be available for the southern area fishery and one commenter asked that 10.5 percent of any quota transferred to the General category from another category during an inseason action be moved into the third subperiod quota. Another commenter requested that the subperiod percentages in the General category remain the same. One commenter stated that the southern area fishery should be closed since it appears to be negatively impacting the traditional New England fishery.

Response: Similar to the Angling category season and retention limits discussed above in the previous response, seasonal management of the General category takes into account time-sensitive information such as current catch rates, among other information, and retention limits are established with inseason actions per 50 CFR 635.23(a)(4), respectively. Potential inseason adjustments to retention limits are being considered by NMFS, and are provided here to assist for constituent planning purposes. However, these adjustments are only potentially being considered for implementation, and may be adjusted based on incoming data as the season progresses. NMFS is considering setting a two fish retention limit for the General category early in the season and adjusting this to one fish per vessel per day after September 1. The increased retention limit early in the season is being considered in expectation of low landings rates during June through August and the availability of a large amount of quota for the fishing year. Should catch rates accelerate, NMFS has the ability to responsively adjust the retention limit in order to ensure availability of quota throughout the range of the fishery. Unused quota in General category time periods is traditionally rolled over from one time period to the next; however, 50 CFR 635.27(a)(8) does allow the transfer of quotas among subcategories and § 635.27(a)(7) identifies specific criteria that must be considered. Any actual transfers between subcategories or categories may be addressed in subsequent actions. NMFS continues to be aware of the interests of Southern area fishermen, particularly off North Carolina, for some limited but fixed General category quota allocation. In the past several years, NMFS has endeavored and succeeded in meeting this request and will continue to do so in 2005. NMFS is considering several alternatives for restructuring General category subquotas in the consolidated HMS FMP (68 FR 40907, July 9, 2003) currently under development to provide a long-term, codified solution to quota allocation for the December to January timeframe.

Comment 6: Several commenters requested that more notice be given for opening and closing of seasons so that participants and other affected businesses ( e.g. , tackle shops) have more planning opportunities. One commenter requested a fixed opening date for the southern area fishery. Another commenter requested the General category fishery be kept open until the entire quota is harvested.

Response: NMFS inseason management of the BFT fishery attempts to balance the constituents' need to plan business affairs and recreational activities with maximizing responsiveness to the changing availability of fish stocks, changes in regional fishery participation, and enforcement of regulations and administrative requirements. For example, establishing fixed opening and/or closing dates provides a certain degree of predictability; however, the availability of BFT on the fishing grounds is not predictable. In addition, daily landings of fisheries that vary based on fleet size, weather, and fish availability are unpredictable in nature, and a fixed closing date could result in quota overages or underages. NMFS will continue to strive to provide sufficient notification of season openings, closings, and retention limit adjustments while maximizing fishing opportunities within the bounds of the established BFT fishery management program.

Comment 7: Several commenters requested that NMFS investigate the effect of the herring fishery and the abundance of dogfish on the BFT catch and fishery in New England.

Response: NMFS recognizes the importance of considering ecosystem interactions in fishery management planning, and addresses ecosystem management as one of the goals of the NMFS Strategic Plan. The agency continues to work toward integrating an ecosystem approach into fishery management practices. Currently, Atlantic herring is managed under a separate FMP by the New England Fishery Management Council (NEFMC) and spiny dogfish is managed by the Mid-Atlantic Fishery Management Council (MAFMC). The Atlantic herring FMP is being amended, and a public hearing document is expected to be available in the near future. An amendment to the spiny dogfish FMP was initiated several years ago and is currently under development. A framework action to increase the time period for fishery specifications is currently underway, by the NEFMC and MAFMC jointly. Little information is available regarding the interaction between these three fisheries. As council and NMFS FMPs are amended, NMFS will continue to evaluate the information available regarding this issue.

Comment 8: Several commenters opposed establishing two-tiered retention limits that allow charter/headboat operators to retain more fish than other Angling category vessels. Another commenter supported a higher retention limit for charter/headboats during the fall season of one fish for every four to six passengers. One commenter suggested that charter/headboat limits vary with the size of the fish ( e.g. , keep a greater number of smaller fish and fewer large fish).

Response: Angling category and CHB retention limits for the 2005 fishing year is discussed in the response to Comment 4. Establishment of retention limits is regularly addressed by inseason actions during the fishing year. NMFS regulations at 50 CFR 635.23(b)(3) explicitly provide for retention limits within the Angling category based upon vessel type, including differentiation of bag limits for private, charterboat and headboat vessels. Differentiation has been used in past actions based on the different and unique practices of each respective vessel type.

Comment 9: One individual stated that there should be more public meetings where fishermen can provide input, and that anecdotal information should be better incorporated into the management process. Several commenters were dissatisfied with the locations of the public hearings, and stated that none were available to recreational fishermen between Gloucester, MA and Morehead City, NC. Another commenter stated that commercial fishermen should be excluded from the fishery management process.

Response: The Magnuson-Stevens Act and ATCA specifically provide for the involvement of the public and fishery participants (commercial and recreational) in the Federal fishery management process. NMFS provided several opportunities for commenting on this rulemaking, including publications requesting comments at the proposed rule state and a total of two public hearings on April 8 and April 11, 2005. Rulemaking background documents were made available by request and on several internet websites. Public hearings are scheduled based on anticipated attendance and distribution of user groups, and may be limited by the constraints of both time and funding. NMFS is interested in receiving feedback about potential locations for future public hearings relative to this topic. Please see the Addresses section for suggestion submissions.

Comment 10: One commenter requested that the purse seine category be eliminated. Several commenters requested that the size limit for the General category be reduced, while one commenter requested that it be increased. A commenter requested that the minimum size in the young school size category be increased, and that the commercial sector quota be cut by five percent across the board. Another commenter requested that BFT quotas be cut by 50 percent this year and 10 percent per year on a continuing basis. The commenter opposed the allowance of 68 mt of dead discards in the BFT fishery,

Response: This final rule is designed to provide for the fair and efficient harvest of the BFT quota that is allocated to the United States by ICCAT and is consistent with ATCA and the Magnuson-Stevens Act. This action establishes BFT quotas based on a 2002 ICCAT recommendation, which includes a dead discard allowance, subdivided among the U.S. domestic fishing fleet categories according to percentages established by the 1999 FMP and implemented in NMFS regulations at 50 CFR 635.27(a). The remaining requested actions are all outside the scope of this action and would require changes to the 1999 FMP, implementing regulations, and/or ICCAT recommendations. These issues are not currently being considered in the development of the amendment to the 1999 FMP.

Comment 11: Several commenters indicated that NMFS is only concerned about management of the commercial fishery. Another commenter believed that recreational fishermen should be allowed to sell fish.

Response: The Magnuson-Stevens Act, 1999 FMP, and implementing regulations all explicitly recognize the value of both commercial and recreational fisheries, and identify the promotion of domestic commercial and recreational fisheries, under sound conservation and management principles. This final rule is consistent with all applicable law including the Magnuson-Stevens Act, and the 1999 FMP. Recreational anglers are prohibited from selling BFT subject to NMFS' intent to manage the commercial and recreational sectors of the BFT fishery under different objectives, as indicated in the 1999 FMP. Implementing regulations at 50 CFR 635.4(d)(2) strictly prohibit the sale of Atlantic HMS caught on board vessels holding an HMS Angling permit. The General category fishery is an open-access commercial fishery, and permits in this category are available to any fisherman that submits a complete application package. Allowing recreational fishermen to sell fish is outside the scope of this rulemaking.

These final specifications and General category effort controls are published under the authority of the Magnuson-Stevens Act and ATCA. The AA has determined that the regulations contained in this rule are necessary to implement the recommendations of ICCAT and to manage the domestic Atlantic HMS fisheries, and are consistent with the Magnuson-Stevens Act and National Standards.

NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) for the proposed rule. No comments were received on the IRFA concerning the economic impact of this final rule that would change the conclusions of the IRFA. One comment stated that the RFDs in the proposed rule could negatively impact non-resident fishermen. As discussed in the IRFA and Final Regulatory Flexibility Analysis (FRFA), this potential impact could be mitigated by the potential increased value of landings dispersed over a greater time period as a result of the RFDs. A summary of the FRFA is provided below.

The analysis for the FRFA assesses the impacts of the various alternatives on the vessels that participate in the BFT fisheries, all of which are considered small entities. In order to do this, NMFS estimated the average impact that the selected alternative to establish the 2005 BFT quota for all domestic fishing categories would have on individual categories and the vessels within those categories.

As mentioned above, the 2002 ICCAT recommendation increased the BFT quota allocation to 1,489.6 mt, to be redistributed to the domestic fishing categories based on the allocation percentages established in the 1999 FMP, as well as a set-aside quota of 25 mt to account for incidental catch of BFT related to directed longline swordfish fisheries and other regulated tuna (bigeye, albacore, yellowfin, and skipjack) fisheries in the NED. Both these quota modifications were established in the 2003 and 2004 specifications. In 2004, the annual gross revenues from the commercial BFT fishery were approximately $5.2 million. There are approximately 9,500 vessels that are permitted to land and sell BFT under four BFT quota categories (including charter/headboat vessels). The commercial categories and their 2004 gross revenues are General ($4,346,814), Harpoon ($317,104), Purse seine ($231,791), and Longline ($305,180). The analysis for the FRFA assumes that each vessel within a category will have similar catch and gross revenues. While this may not be true, the analyses are sufficient to show the relative impact of the various selected alternatives on vessels.

For the allocation of BFT quota among domestic fishing categories, NMFS analyzed a no action alternative and Alternative two (selected alternative) which would implement the 2002 ICCAT recommendation. NMFS considered a third alternative that would have allocated the 2002 ICCAT recommendation in a manner other than that designated in the 1999 FMP that was meant to address issues regarding specific set-asides and allocations for fishing groups which are not currently considered in the 1999 FMP. However, since the third alternative could have resulted in a defacto sub-period quota reallocation, an FMP amendment would be necessary for its implementation, and it was not further analyzed. In a concurrent rulemaking, the development of the consolidated HMS FMP has been initiated (68 FR 40907, July 9, 2003) to consider sub-period quota allocations in the BFT fishery, among other things.

As noted above, Alternative two would implement the 2002 ICCAT recommendation in accordance with the 1999 FMP and consistent with ATCA. Under ATCA, the United States is obligated to implement ICCAT-approved quota recommendations. The selected alternative would apply this quota and have positive impacts for fishermen. The no action alternative would keep the quota at pre-2002 ICCAT recommendation levels ( i.e. , 77.6 mt less) and would not be consistent with the purpose and need for this action and the 1999 FMP. It would maintain economic impacts to the United States and to local economies at a distribution and scale similar to 2002 or recent prior years, but would deny fishermen additional fishing opportunities as recommended by the 2002 ICCAT recommendation and as mandated by ATCA. This alternative was rejected because it was inconsistent with ATCA, the 1999 FMP, and the purpose and need for this action.

Alternative two also included consideration of several options for reducing catch of school bluefin tuna, including: (1) Taking no action until 2006; (2) reallocating all or a portion of the 2005 school subquota to the large school/small medium subquota for 2005; (3) maintaining the default Angling category retention limit of one fish per vessel per day for the entire 2005 season; or (4) prohibiting landing of school BFT in 2005 and carrying over the subquota to 2006. During the public comment period, comment was specifically sought on these options. Because of limited economic data regarding recreational HMS fisheries, economic impacts of the various options cannot be quantified. However, the options that include some reduction in school BFT landings in 2005 (Options 2, 3 and 4) could have minor negative economic impacts for 2005. Any modest economic impacts to charter/headboat or recreational fisheries as a result of option 2 could be mitigated by the shift of quota to the large school/small medium subquota. In addition, the apparent recent increase in school BFT landings could indicate an increase in abundance of young BFT, some of which could be recruited into the large school/small medium size class in 2005, thus mitigating any reduction in school BFT from Options 2 or 4. Impacts from Option 3 are less likely to be mitigated by shifts in quota or abundance since the one fish retention limit would be in place for the entire season, and the small retention limit could have greater impacts on charter/headboat fisheries than the other options. Options 2, 3, and 4 were rejected because each was more likely to have negative impacts on the 2005 fishing year as describe above than Option 1. Under Option 1, the selected alternative, there would be few negative impacts in the coming fishing year compared to the other alternatives; however, more severe measures may be required to reduce school harvest in 2006. NMFS intends to use inseason actions to the extent possible to adjust retention limits and moderate the catch of school BFT during the 2005 fishing year to maximize fishing opportunities and mitigate impacts in 2005 and 2006.

For the General category effort controls, two alternatives were considered: The selected alternative to designate RFDs according to a schedule published in the initial BFT specifications and the no action alternative (no RFDs published with the initial specifications, but implemented during the season as needed). In the past, when catch rates have been high, the use of RFDs (selected alternative) has had positive economic consequences by avoiding oversupplying the market and extending the season as late as possible. Implementing RFDs to extend the late season may have negative economic impacts to northern area fishermen who choose to travel to the southern area during the late season fishery. Travel and lodging costs may be greater if the season were extended over a greater period of time as indicated under the selected alternative. Those additional costs could be mitigated if the ex-vessel price of BFT stays high. Without RFDs, travel costs may be less because of a shorter season; however, the market could be oversupplied and ex-vessel prices could fall. Despite the possible negative impacts, extending the season as late as possible would enhance the likelihood of increasing participation by southern area fishermen, increase access to the fishery over a greater range of the fish migration, and is expected to provide better than average ex-vessel prices with an overall increase in gross revenues.

The no action alternative would not implement any RFDs with publication of the initial specifications but rather would use inseason management authority established in the 1999 FMP to implement RFDs during the season, should catch rates warrant. This alternative is most beneficial during a season of low catch rates and would have positive economic consequences if slow catch rates were to persist. Overall, the season would regulate itself and fishermen could choose when to fish or not based on their own preferences. However, even with low catch rates and no RFDs, this alternative was rejected because it is unlikely that there will be enough quota in the General category to sustain an extended late season commercial handgear fishery off south Atlantic states.

The action would not result in additional reporting, recordkeeping, compliance, or monitoring requirements for the public. This final rule has also been determined not to duplicate, overlap, or conflict with any other Federal rules.

NMFS prepared an EA for this final rule, and the AA has concluded that there would be no significant impact on the human environment with implementation of this final rule. The EA presents analyses of the anticipated impacts of these regulations and the alternatives considered. A copy of the EA and other analytical documents prepared for this proposed rule, are available from NMFS via the Federal e-Rulemaking Portal ( see ADDRESSES ).

This final rule has been determined to be not significant for purposes of Executive Order 12866.

This final rule contains no new collection-of-information requirements subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). Notwithstanding any other provisions of the law, no person is required to respond to, nor shall any person be subject to, a penalty for failure to comply with a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB control number.

On September 7, 2000, NMFS reinitiated formal consultation for all HMS commercial fisheries under section 7 of the Endangered Species Act. A Biological Opinion (BiOp), issued June 14, 2001, concluded that continued operation of the Atlantic pelagic longline fishery is likely to jeopardize the continued existence of endangered and threatened sea turtle species under NMFS jurisdiction. This BiOp also concluded that the continued operation of the purse seine and handgear fisheries may adversely affect, but is not likely to jeopardize, the continued existence of any endangered or threatened species under NMFS jurisdiction. NMFS has implemented the reasonable and prudent alternative (RPA) required by this BiOp.

Subsequently, based on the management measures in several proposed rules, a new BiOp on the Atlantic pelagic longline fishery was issued on June 1, 2004. The 2004 BiOp found that the continued operation of the fishery was not likely to jeopardize the continued existence of loggerhead, green, hawksbill, Kemp's ridley, or olive ridley sea turtles, but was likely to jeopardize the continued existence of leatherback sea turtles. The 2004 BiOp identified RPAs necessary to avoid jeopardizing leatherbacks, and listed the Reasonable and Prudent Measures (RPMs) and terms and conditions necessary to authorize continued take as part of the revised incidental take statement. On July 6, 2004, NMFS published a final rule (69 FR 40734) implementing additional sea turtle bycatch and bycatch mortality mitigation measures for all Atlantic vessels with pelagic longline gear onboard. NMFS is working on implementing the other RPMs in compliance with the 2004 BiOp. On August 12, 2004, NMFS published an advance notice of proposed rulemaking (69 FR 49858) to request comments on potential regulatory changes to further reduce bycatch and bycatch mortality of sea turtles, as well as comments on the feasibility of framework mechanisms to address unanticipated increases in sea turtle interactions and mortalities, should they occur. NMFS will undertake additional rulemaking and non-regulatory actions, as required, to implement any management measures that are required under the 2004 BiOp. The measures in this action are not expected to have adverse impacts on protected species. Although the 2002 ICCAT recommendation increased the BFT quota, which may result in a slight increase in effort, NMFS does not expect this slight increase to alter current fishing patterns. Any option to reduce mortality of school BFT are expected to have negligible ecological impacts and not adversely impact protected species. The specific action to allocate additional BFT quota to the Longline category would not alter current impacts on threatened or endangered species. The action would not modify fishing behavior or gear type, nor would it expand fishing effort because BFT are only allowed to be retained incidentally. Thus, the action would not be expected to change previously analyzed endangered species or marine mammal interaction rates or magnitudes, or substantially alter current fishing practices or bycatch mortality rates.

The area in which this action will occur has been identified as Essential Fish Habitat (EFH) for species managed by the New England Fishery Management Council, the Mid-Atlantic Fishery Management Council, the South Atlantic Fishery Management Council, the Gulf of Mexico Fishery Management Council, the Caribbean Fishery Management Council, and the HMS Management Division of the Office of Sustainable Fisheries at NMFS. NMFS does not anticipate that this action will have any adverse impacts to EFH and, therefore, no consultation is required.

NMFS has determined that the actions in this final rule are consistent to the maximum extent practicable with the enforceable policies of the coastal states in the Atlantic, Gulf of Mexico, and Caribbean that have Federally approved coastal zone management programs under the Coastal Zone Management Act (CZMA). The rule establishing quota specifications and effort controls was submitted to the responsible state agencies for their review under section 307 of the CZMA on March 23, 2005. As of May 6, 2005, NMFS has received five responses, all concurring with NMFS' consistency determination. Because no responses were received from other states, their concurrence is presumed.

Regulations implemented under the authority of the Atlantic Tunas Convention Act (16 U.S.C. 971 et seq. ) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq. ) governing the harvest of BFT by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. Section 635.27 subdivides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) among the various domestic fishing categories.

Under 50 CFR 635.23(a)(4), NOAA Fisheries may increase or decrease the General category daily retention limit of large medium and giant BFT over a range from zero (on Restricted Fishing Days) to a maximum of three per vessel to allow for maximum utilization of the quota for BFT. Starting on June 1, 2005, the default commercial General category daily retention limit at 50 CFR 635.23(a)(2), will apply at one large medium or giant BFT (measuring 73 inches curved fork length (CFL)) or greater per vessel per day/trip. This retention limit applies to permitted HMS Charter/Headboat vessels (when commercially fishing under the General category) and General category permitted vessels.

NOAA Fisheries has been continuing to receive information from fishermen regarding the start of the season and requests for an increase of the retention limit in the General category starting as close as possible to the start of the fishery on June 1 and for increased recreational Charterboat limits mid June to end of July. Fishermen have indicated that, if the action is not conducted expeditiously, at the opening of the season, then a subsector of General category fishermen (particularly in northern New England) will lose the opportunity to enjoy the increased fishing opportunities while the fish are briefly offshore in the Gulf of Maine and northern New England fishing areas.

Therefore, NOAA Fisheries adjusts the General category daily retention limit June 6 through August 31, 2005, inclusive, to two large medium or giant BFT, measuring 73 inches (185 cm) CFL or greater, per vessel per day/trip. The default retention limit of one BFT greater than 73 inches will apply through June 5, 2005 inclusive, and the retention limit will revert back to the default on September 1, 2005. It is highly likely that with a combination of the default bag limit of one BFT starting on September 1, 2005, and the large amount of General category quota, that there will be sufficient quota for a full general category season extending into the winter months and for southern area fishermen on an order of magnitude of recent prior years.

Starting on June 1, 2005, the default recreational daily retention limit at 50 CFR 635.23(b), will apply at one school, large school or small medium BFT (measuring 27 inches to less than 73 inches curved fork length (CFL)) per vessel per day/trip. This retention limit applies to permitted HMS Charter/Headboat vessels (when recreationally fishing under the Angling category) and to HMS Angling permitted vessels. These regulations also allow for adjustment to the daily retention limit to provide for maximum utilization of the quota over the longest possible period of time. NOAA Fisheries may increase or decrease the retention limit for any size class BFT or change a vessel trip limit to an angler limit or vice versa. Such adjustments to the retention limits may be applied separately for persons aboard specific vessel types, such as private vessels, headboats, and charter boats.

NOAA Fisheries has recently received more information from charter operators and recreational industry leaders related to recreational BFT fishing opportunities in the mid-Atlantic area. Among other matters, NOAA Fisheries has learned about a tuna tournament starting on June 17, 2005, and concerns regarding how the default one BFT retention limit might negatively impact charterboat operations early in the season particularly in tournaments where higher limits will attract more participants. Charterboat operators have requested an increased retention limit, and expressed concern that a recreational retention limit of less than three or four BFT per vessel per day/trip does not provide reasonable fishing opportunities for charter/headboats, which carry multiple fee-paying passengers. Fishermen have also emphasized that an early season retention limit adjustment should be announced as soon as possible so that Charterboat operators have sufficient time to announce and plan the scheduling of trips. Another consideration is the need to ensure the United States meets ICCAT's recommendation regarding quota allocation and specifically regarding the catch of school BFT to no more than eight percent by weight of the total domestic landings quota over each four-consecutive-year period. The 2005 fishing year is the third year in the current accounting period. This multi-year block quota approach provides NOAA Fisheries with the flexibility to enhance fishing opportunities and to collect information on a broad range of BFT size classes.

Over the past several weeks HMS staff have received information related to retention limit adjustments for a variety of recreational fishing sectors along the entire Atlantic coast and for the duration of the 2005 fishing year. HMS staff have considered this information as well as issues raised at the HMS Advisory Panel meeting held in March 2005 and received from public comment on the proposed initial 2005 BFT specifications (70 FR 14630, March 23, 2005). The final initial specifications are currently in preparation and take into account recently available estimates of total recreational landings from the 2004 fishing year. These analyses show that a modest increase in the daily retention limit, of limited duration, is feasible without risking overharvest of available quota for the early part of the 2005 recreational season.

Thus, NOAA Fisheries adjusts the daily BFT retention limit, in all areas, for vessels permitted in the HMS Charter/Headboat category, effective June 17 through July 31, 2005, inclusive, to three BFT per vessel per day/trip, consisting of BFT measuring 27 to less than 73 inches (69 to less than 185 cm) CFL in the school, large school, or small medium size classes. Of the three BFT, a maximum of two school BFT are allowed per vessel per day/trip, measuring 27 to less than 47 inches (69 to less than 119 cm) CFL.

Effective August 1, 2005, the default daily recreational retention limit at 50 CFR 635.23(b) will apply in all areas, for all vessels fishing under the recreational angling quota and regulations. However, NOAA Fisheries is also aware of the needs of a late summer or September Charterboat fishery and will consider the possibility of again providing a modest retention limit adjustment closer to that time frame based on several factors, including but not limited to, the landings and quota data as well as other fishery information gathered from the monitoring programs discussed below, experience of this early season retention limit adjustment, information from fishermen and the public regarding fishing opportunities, and the availability of migrating BFT.

For privately owned and operated recreational vessels, permitted in the HMS Angling category, the daily recreational retention limit will remain at one school, large school, or small medium BFT measuring 27 to less than 73 inches (69 to less than 185 cm) CFL, per vessel per day/trip effective June 1, 2005 through May 31, 2006, inclusive.

NMFS selected the daily recreational retention limits and their duration after examining previous fishing year catch and effort rates, receiving public comment, and analyzing the available quota for the 2005 fishing year. NMFS will continue to monitor the BFT fishery closely through dealer landing reports, the Automated Landings Reporting System, state harvest tagging programs in North Carolina and Maryland, and the Large Pelagics Survey. Depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional retention limit adjustments are necessary to ensure available quota is not exceeded or, to enhance scientific data collection from, and fishing opportunities in, all geographic areas. Additionally, NMFS may determine that an allocation from the school BFT reserve is warranted to further fishery management objectives.

Closures or subsequent adjustments to the daily retention limits, if any, will be published in the Federal Register . In addition, fishermen may call the Atlantic Tunas Information Line at (888) 872-8862 or (978) 281-9260 for updates on quota monitoring and retention limit adjustments. All BFT landed under the Angling category quota must be reported within 24 hours of landing to the NMFS Automated Landings Reporting System via toll-free phone at (888) 872-8862; or the Internet http://www.nmfspermits.com ; or, if landed in the states of North Carolina or Maryland, to a reporting station prior to offloading. Information about these state harvest tagging programs, including reporting station locations, can be obtained in North Carolina by calling (800) 338-7804, and in Maryland by calling (410) 213-1531.

The Assistant Administrator for Fisheries, NOAA (AA), finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action. NOAA Fisheries published proposed initial 2005 BFT specifications (70 FR 14630) on March 23, 2005, and solicited public comment through 4/18/2005. NOAA Fisheries specifically requested comment on options to achieve the ICCAT recommended four-year average 8 percent tolerance on harvest of school BFT. Numerous comments were received on this issue as well as a wide range of topics, including inseason management measures for the General and Angling categories throughout the 2005 fishing year. NOAA Fisheries is in the process of publishing the final initial specifications.

Since the end of the comment period to the present day, the HMS Management Division has continued to receive more information refining its understanding of both the commercial and recreational sectors' specific needs regarding retention limits early in the season. HMS staff recent calculations from the specifications process show that there is sufficient quota for an increase in the General category retention limit from the start of the season. Prior experience from the past several years also leads us to predict that the General category season will start slowly and an adjustment of the retention limit will be necessary to maximize fishing opportunities on the June through August subquota and minimize excessive rollovers of quota into the October subquota category. The data also show that a limited increase in the angling retention limit is possible for the recreational Charterboat fleet while minimizing risks of exceeding the ICCAT allocated quota and the school limit recommendation.

Delays in increasing the retention limits would adversely affect those General and Charter/Headboat category vessels that would otherwise have an opportunity to harvest more than one BFT per day and would further exacerbate the problem of quota rollovers, or lack of booked charters. Limited opportunities to access the respective quotas may have negative social and economic impacts to U.S. fishermen that either depend upon catching the available quota within the time periods designated in the HMS FMP, or depend on multiple BFT retention limits to attract individuals to book charters. For both the General and the recreational sectors, an adjustment to the retention limits needs to be done as close to the start of the season on June 1 as possible for the impacted sectors to benefit from the adjustment and for fishermen who only have access to the fishery at the beginning of the season to not be precluded from early season fishing opportunities.

Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For all of the above reasons, and because this action relieves a restriction ( i.e. , current, default retention limit is one fish per vessel/trip but this action relaxes that limit and allows retention of more fish), there is also good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.

This action is being taken under 50 CFR 635.23(a)(4) and is exempt from review under Executive Order 12866.

Regulations governing the summer flounder fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is apportioned among the coastal states from North Carolina through Maine. The process to set the annual commercial quota and the percent allocated to each state are described in § 648.100.

The ASMFC adopted Addendum XV to the FMP in November 2004. The Addendum is being implemented under the adaptive management and framework procedures that are part of the FMP. Addendum XV establishes a program, for 2005 and 2006, that allocates the increase in commercial summer flounder quota (from the 2004 amount) differently than the existing allocation scheme, in order to reduce the amount of fish that must be discarded as bycatch in the commercial fishery in states with relatively low summer flounder quotas. The transfer of quota from donor states will allow recipient states to marginally increase trip limits, thereby decreasing the amount of summer flounder discarded at sea.

The final rule implementing Amendment 5 to the FMP that was published on December 17, 1993 (58 FR 65936), provided a mechanism for summer flounder quota to be transferred from one state to another. Two or more states, under mutual agreement and with the concurrence of the Administrator, Northeast Region, NMFS (Regional Administrator), can transfer or combine summer flounder commercial quota under § 648.100(d). The Regional Administrator is required to consider the criteria set forth in § 648.100(d)(3) in the evaluation of requests for quota transfers or combinations. The Regional Administrator has reviewed those criteria and approved the quota transfer requests submitted by the State of North Carolina.

Consistent with Addendum XV, North Carolina, a designated “donor state,” has voluntarily employed the quota transfer provisions of the FMP to transfer a total of 82,774 lb (37,546 kg) to be allocated as follows: Maine 1,639 lb (743 kg); Connecticut 22,917 lb (10,395 kg); New York 17,085 lb (7,750 kg); Maryland 23,153 lb (10,502 kg); and Massachusetts--17,980 lb (8,156 kg) (see Table 1).

This action is taken under 50 CFR part 648 and is exempt from review under E.O. 12866.