This rule has been determined to be not significant for purposes of Executive Order 12866 and therefore has not been reviewed by the Office of Management and Budget (OMB).

It has been determined that the Regulatory Flexibility Act is not applicable to this proposed rule because FSA is not required by 5 U.S.C. 533 or any other provision of the law to publish a notice of proposed rulemaking with respect to the subject matter of this rule.

It has been determined by an environmental evaluation that this action will have no significant impact on the quality of the human environment. Therefore, neither an environmental assessment nor an Environmental Impact Statement is needed.

This proposed rule has been reviewed in accordance with Executive Order 12988. The provisions of this proposed rule preempt State laws to the extent such laws are inconsistent with the provisions of this rule. The provisions of this rule are not retroactive. Before any judicial action may be brought concerning the provisions of this rule, the administrative remedies must be exhausted.

This program/activity is not subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials. See the Notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115 (June 24, 1983).

This rule contains no Federal mandates under the regulatory provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) for State, local, and tribal governments or the private sector. Thus, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

Information collected in this rule has been approved by OMB and assigned OMB Control Number 0560-0025. This rule does not contain any new collection information requirements.

It has been determined that this rule does not have significant Federalism implications to warrant the preparation of a Federalism Assessment. The provisions contained in this rule will not have a substantial direct effect on States or their political subdivisions, or on the distribution of power and responsibilities among the various levels of Government.

A number of commodity programs are administered on a farm-by-farm basis. Rules in 7 CFR part 718 govern what is considered to be a “farm” for certain commodity programs and sets out other generic definitions and rules for those programs. This proposed rule would amend part 718 in several respects. First, a number of definitions found at § 718.2 would be amended. Among these, the “agricultural use” definition in that section would be revised in its entirety. Under the rules in part 718 in certain instances the division of a farm's “contract acreage” (acreage enrolled in the Production Flexibility Contract program administered under 7 CFR part 1412) will be made on the basis of each separate tract's agricultural use acreage. Currently, the § 718.2 “agricultural use” definition refers to certain specific crop, forage and conserving uses. To avoid being unduly restrictive, the definition would, by this rule, be modified to more generally provide that it includes any agricultural activity. Also, § 718.2 would be amended to add a definition for “common ownership unit”. That term and concept is used in connection with tobacco farm divisions under 7 CFR part 723 in which production histories may be assigned to those units. The added definition follows that which already appears in part 723. Further, the “cropland” definition in § 718.2 is important for a number of program matters including the establishment of how much land on the farm can be enrolled in the Production Flexibility Contract program and the Conservation Reserve Program. This rule would clarify the definition to specify that: (1) newly broken out land will be considered “cropland” for part 718 purposes so long as the land is capable of, and is intended to be harvested using normal harvesting and production techniques and (2) land devoted to ponds, tanks, or trees will not generally be considered “cropland” for part 718 purposes. In addition, the “farm” definition contained in § 718.2 will be modified. Currently, that term is defined to mean a unit operated by one producer with equipment, labor, accounting system and management separate from other production units. To comport more plainly with current practice and more clearly incorporate the other conditions that apply to the constitution of a farm under part 718, the “farm” definition would be clarified to specify that a farm must (in addition to meeting other requirements) consist of tracts that: (1) Have both the same owner and operator or (2) have the same operator but have multiple owners who have agreed in writing to have the tracts treated as one farm. Also, as indicated, in the current definition it is provided that the farm's equipment, labor, accounting system and management must be separate from that of other units. That provision would, in the proposed rule be moved to § 718.201. Further, the current “farmland” definition specifies that “farmland” includes cropland, forest, and other land on the farm. That which is “farmland” and which is not “farmland”, can be important for some program determinations. In this rule, the part 718 “farmland” definition will be clarified to match other definition changes proposed in this rule. Finally, with respect to the definitions, the term “operator” is currently defined in § 718.2 to mean the person who is determinated by the local Farm Service Agency (FSA) county committee to be the person in charge of the farm for the current year. Since those determinations (of who is the “operator” on the farm) are sometimes on-going determinations rather than determinations that are made every year, the new definition would remove the reference to the “current year.”

Also, this rule would amend provisions of § 710.201 relating to those instances in which the combination of farms is prohibited. Under the current regulations, a PFC farm and non-PFC farm cannot be combined because to do so could unduly expand the eligibility of the producer for certain commodity loans which are, by statute, intended to be limited to PFC farms only. However, that concern may not come into play when the non-PFC farm has potential PFC eligibility because of an existing CRP contract and the entirety of that farm is enrolled in the CRP. Accordingly, the rule would allow such combinations to occur in those limited circumstances despite the fact that one farm is a PFC farm and the other is not. The rule contemplates, however, that if on the termination of the CRP contract the new PFC eligibility is not exercised, the two farms would have to be divided back into separate farms. Further, the rule would also amend § 718.204. Specifically, that section would be revised to add a provision that specifies for farms in the PFC program that a requested farm reconstitution will become effective for the current year only if initiated before the earlier of June 1 of the fiscal year or the date on which PFC payments for the farm for that year are issued. This will help avoid having a change in farm organization that may raise a dispute over the proper distribution of current PFC monies. Also, under the current provisions of § 718.204, the county FSA committee, with the concurrence of the State FSA committee, can allow extension of the deadlines otherwise provided for in § 718.204 so long as the extension would not serve to foster a scheme to avoid substantive program requirements. In this rule that allowance would no longer apply to the special deadline that applies to PFC contracts. This change would be made to further assure that there is no interference and confusion over the making of current PFC payments and to assure uniformity. That section also contains a provision with a special rule for farms with tobacco or peanuts which provides that the farm reconstitutions for those farms will be effective for the current year only if the reconstitution is initiated before the crop is planted or would have been planted. To assure clarity in the application of the rules, § 718.204 would be amended to add an additional provision which addresses the situation where the reconstitution involves both: (1) a PFC and (2) tobacco or peanut farms. In such case, the earlier of the two deadlines (the one for PFC farms and the one for tobacco and peanut farms) would establish the last date by which a farm reconstitution could be effective for the current year. Finally, there would be one additional provision added to § 718.204(e) to specify that the division of or combination of farm acreage would also include the division or combination of any potential PFC eligibility that may be associated with a current CRP contract. That is, when the PFC was initiated, farms with certain preexisting “crop acreage bases” were given a one-time opportunity to enroll in the PFC. Eligible farms had to have a “crop acreage base” under a preexisting program. Producers had to enroll their acreage in the program by a set date in 1996, the only exception being that a later sign-up was allowed for farms that had a crop acreage base in suspension under a CRP contract. Those farms, on a one-time only basis, can enroll acreage into the PFC upon termination of the CRP contract, subject to certain conditions.

Amendments are also proposed for § 718.205. That section sets out, in an order of priority, the various calculation methods that are used to divide up or reconstitute a farm. To improve program performance, amendments are proposed here to § 718.205. The current priority list calls for using the following division and reconstitution methods in the following order or priority as applicable: (1) Estate method; (2) designation by owner method; (3) contribution method; (4) agricultural use method; (5) cropland method and (6) history method. This rule would add a new method which is to be called the “default method” and which will, as a matter of priority, be added between the “agricultural use” and “cropland” methods. Under the “default” method the tracts would be divided away from the parent farm based on the attributes of the individual tracts at the time of the division. Also, because of the addition of this new method, other technical revisions have been needed so as to reorganize § 718.205. In addition, § 718.205 has been further revised to specify that the agency can adjust the results of any reconstitution when it believes that to do so would be more equitable or would further the purposes of the program which are impacted by decisions made under part 718. Still further, a provision is added to § 718.205 to specify that where the division of the farm is going to be made using the landowner designation method, those persons with a security interest in the land itself must agree to the disposition. This is designed to insure fairness and thus, in addition, avoid having the reconstitution regulations serve as an impediment to the ability of farmers to obtain financing. Also, the provision in § 718.205 regarding the contribution method have been changed as they regard the current provisions which provide that this method will be used to separate farms only if the contribution took place within the last 6 years or if there are adequate records to allow the determination to be made. In the end, that provision merely establishes that which would be implied anyway; namely, that the contribution method will only be used to the extent that the contribution can actually be determined. Even with the 6 year period mentioned in the current rule, the contribution method could not be used effectively unless there were sufficient records available to allow the determination to be made. Hence, that provision, in this rule, would be eliminated.

Further, the provisions dealing with the “agricultural use” method would be amended. Currently the regulations call for, when using that method, dividing the tract based on land involved in “agricultural and related activity.” Because of the expansive new definition of “agricultural use” which would be adopted in this rule, those references in this rule would be changed to references to land in “agricultural use.” That change would not be expected to change in a material way the application of the agricultural use method of proration. In addition, this part of the regulations is modified to make another clarifying change in its text.

Finally, it is proposed that the authority citation for part 718 be amended to add references to 7 U.S.C. 1375, 1378, and 1379. These are generic provisions of the Agricultural Adjustment Act of 1938 which generally provide for the Secretary to issue regulations governing the making available of quotas and allotments under that Act and other matters relating to that Act. Also those provisions deal with the disposition of allotments when there is an exercise of eminent domain over a farm and, 7 U.S.C. 1379 specifically provides the Secretary with the authority to undertake farm reconstitutions. Further, this rule would add a section that would set out in part 718 the control numbers assigned by the Office of Management and Budget for Paperwork Reduction Act purposes.

Comments are requested on all of these matters.

Accordingly, 7 CFR part 718 is proposed to be amended as follows:

The Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), Public Law 101-73, 103 Stat. 183 (Aug. 9, 1989), established REFCORP to provide funds for the Resolution Trust Corporation (RTC). 12 U.S.C. 1441b. REFCORP was authorized to issue up to $30 billion in debt obligations; as of September 20, 1999, REFCORP had $29.9 billion in non-callable bonds outstanding with maturities ranging from October 15, 2019, to April 15, 2030. The RTC used the proceeds from the sale of these bonds to pay the costs of liquidating failed savings associations. FIRREA amended the Federal Home Loan Bank Act (Bank Act) to require the Banks to pay $300 million annually toward the interest on those bonds if REFCORP's income from other sources specified in the Bank Act was insufficient to pay the interest on the REFCORP bonds. Income from these other sources has always been insufficient to pay the interest on the REFCORP bonds, and the Banks have paid $300 million annually to REFCORP. To the extent amounts available from the other statutorily specified sources and the Banks' $300 million are insufficient to pay the interest on the REFCORP bonds, the Bank Act directs the United States Department of the Treasury (Treasury) to pay to REFCORP additional amounts that will be used by REFCORP to pay the interest. 12 U.S.C. 1441b(f)(2)(E).

It has been the practice of the Banks to make payments to REFCORP on a quarterly basis, typically on January 15, April 15, July 15, and October 15 of each year. These dates correspond to the dates on which REFCORP makes coupon payments on the outstanding bonds. The aggregate amount of the Banks' quarterly interest payments has been $75 million, which the Banks have accrued during the calendar-year quarter immediately preceding the payment. To date, the Banks have made all required REFCORP interest payments. 1 Prior to the enactment of Gramm-Leach-Bliley, Public Law 106-102, 113 Stat. 1338 (Nov. 12, 1999), the Banks' obligation to pay interest on the REFCORP bonds would have terminated upon payment of the $75 million due for the first quarter of 2030, which would have been paid on April 15, 2030, the final maturity date for the last REFCORP bond.

As previously noted, the Banks' REFCORP obligation prior to the enactment of Gramm-Leach-Bliley was a fixed dollar amount that bore no relationship to the net income of any Bank. As a result, in the years that the Banks experience reduced income, as occurred in the early 1990's, each Bank's REFCORP obligation, as a percent of its income, increases significantly. This historically has caused the Banks to seek ways to generate higher earnings to meet the statutorily mandated REFCORP and Affordable Housing Program  2 obligations and to continue to pay a dividend sufficient to retain members. The Banks' historical solution to the dilemma has been to amass large portfolios of investment securities and generate arbitrage earnings. While this strategy has been profitable and has posed no safety and soundness threat to the Bank System, the Finance Board, Congress, and the Treasury have noted and criticized the strategy because the investments do not advance the mission of the Banks, which are government sponsored enterprises with a public purpose. The fixed-dollar nature of the REFCORP obligation has been cited by critics as part of the cause of the problem.

Gramm-Leach-Bliley changed the Banks' REFCORP assessment from a fixed-dollar $300 million annual payment to an annual payment of 20 percent of each Bank's net earnings. See Public Law 106-102, sec. 607, 133 Stat. 1455-56 ( amending 12 U.S.C. 1441b(f)(2)(C)). Gramm-Leach-Bliley also contains provisions intended to assure that the change in the method of assessing the Banks' REFCORP obligation does not increase or decrease the burden of paying interest on the REFCORP bonds either for the Banks or the Treasury. To accomplish this goal, the Gramm-Leach-Bliley amendments require the value of payments actually made by the Banks to REFCORP to equal the value of a $300 million annual annuity that commences on the issuance date of the first REFCORP bond (October 15, 1989) and ends on the maturity date of the last REFCORP bond (April 15, 2030), where the relevant values are properly discounted to account for the time value of money. This annuity exactly mimics the amounts that had been due from the Banks for interest on REFCORP bonds under the prior law.

Gramm-Leach-Bliley specifically requires the Finance Board to make an annual determination of the extent to which the value of the aggregate amounts paid by the Banks exceeds or falls short of the value of an annuity of $300 million per year that commences on the issuance date and ends on the final scheduled maturity date of the obligations and to select appropriate present-value factors for making such determinations, in consultation with the Secretary of the Treasury. See Public Law 106-102, sec. 607, 113 Stat. 1455-56 ( amending 12 U.S.C. 1441b(f)(2)(C)(ii)). The Finance Board also is required to shorten or extend the term of the Banks' REFCORP obligation as necessary to ensure that the value of all payments made by the Banks is equivalent to the value of the referenced annuity. See id. ( amending 12 U.S.C. 1441b(f)(2)(C)(iii)). The Finance Board may, if required, extend the term of the payment obligation beyond the final scheduled maturity date for the REFCORP bonds. Id. ( amending 12 U.S.C. 1441b(f)(2)(C)(iii) and (iv)).

In order to implement the provisions of Gramm-Leach-Bliley discussed above, the Finance Board is proposing a methodology for adjusting the date of the final REFCORP payment due from the Banks. The methodology entails the simulated purchase or sale each quarter of zero-coupon Treasury bonds. 3 The effect of the simulated purchase or sale of the zero-coupon bonds will be to defease the most distant outstanding quarterly benchmark annuity payment or, in the case of a sale, to extend the benchmark annuity payment schedule in quarterly increments. When all quarterly annuity payments have actually been covered through payment or defeasance, the Banks' REFCORP obligation would cease. While this explanation discusses benchmark annuity “payments” and the “purchase” and “sale” of zero coupon bonds, we emphasize that these payments, purchases, and sales are simulated and do not actually occur. They are used as a device to equate the cash flows, on a present-value basis, of the amounts paid by the Banks under the Gramm-Leach-Bliley provisions with the payments that would have been made under the prior law.

In theory, when an assessment of 20 percent of the Banks' net earnings exceeds the benchmark annuity value of $75 million, the excess amount would be used to simulate the purchase of zero-coupon Treasury bonds, the maturity dates of which correspond to the payment dates for the most-distant, non-defeased quarterly benchmark annuity and the par amount of which corresponds to the benchmark annuity payment due in that specific quarter. Because the purchased bonds “mature” on the “payment” date for the benchmark annuity and have a par amount equal to the benchmark amount, the amount “received” upon maturity of the bonds can be used to “pay” the benchmark annuity payment. The simulated purchase of the zero-coupon bonds will defease the future benchmark annuity obligations. The estimates for the applicable interest rates on zero-coupon Treasury bonds maturing on specific dates in the future are available from, and will be provided to, the Finance Board by the Treasury's Office of Market Finance.

For example, assume that on April 15, 2000, the date of the first REFCORP payment under the Gramm-Leach-Bliley provisions, 20 percent of the Banks' quarterly net earnings equals $86.3 million. Of that $86.3 million, $75 million would be used to “cover” the quarterly benchmark annuity due on April 15, 2000 and the amount in excess of $75 million, or $11.3 million, would be used to simulate the purchase of a 30-year zero-coupon Treasury bond with a par amount of $75 million and a maturity date of April 15, 2030, the date of the final benchmark annuity payment. (The cost of the purchase of a zero-coupon bond can be found by taking the present value of the par amount of the bond, discounted at current interest rates.) At current interest rates, the (estimated) cost of a zero-coupon Treasury bond that matures on April 15, 2030, has a par amount of $75 million, and is purchased on April 15, 2000, would be approximately $11.3 million. The available excess, therefore, could completely defease the benchmark annuity payment of $75 million due on April 15, 2030.

If 20 percent of net earnings for the first quarter of 2000 were greater than $86.3 million, then all or part of the penultimate benchmark annuity payment of $75 million due on January 15, 2030 also could be defeased. In this case, the “cost' of the relevant 29-year, 9-month zero-coupon Treasury bond with a par amount of $75 million and maturity date of January 15, 2030 would be approximately $11.5 million. Thus, if 20 percent of net earnings for the first quarter of 2000 were $97.8 million, the $75 million payment due on January 15, 2030, could also be fully defeased. (A payment of $97.8 million on April 15, 2000 would be sufficient to cover the current $75 million quarterly benchmark annuity plus the $11.3 million required to defease the April 15, 2030 annuity payment plus the $11.5 million needed to defease the quarterly annuity payment for January 15, 2030.)

The reported net income for the Banks was $496 million in the second quarter of 1999 and $556 million in the third quarter of 1999. Twenty percent of these amounts would be $99.2 million and $111.2 million, respectively, which would have produced an available quarterly excess much larger than was used in the above examples if the new assessment methodology had been in effect in 1999.

The Finance Board is proposing that fractional parts of future payments can be defeased if the excess quarterly payment would defease less than a full payment. Using the previous example, if 20 percent of quarterly net income for the first quarter of 2000 were $80 million, only $5 million would be available to simulate the purchase of a zero-coupon Treasury bond. This excess would go towards defeasing about 44 percent of the April 15, 2030 payment ( i.e., $5.0 million divided by $11.3 million). Any “excess” above $75 million from the Banks REFCORP payment due on July 15, 2000, would then be put toward defeasing the remainder of the April 15, 2030, benchmark annuity payment. Specifically, the July excess payment would be first used to simulate the purchase of a 29-year and 9-month zero-coupon Treasury bond that matures on April 15, 2030.

If 20 percent of quarterly net income were less than $75 million, the defeasance scheme would work in reverse. Instead of simulating the purchase of zero-coupon Treasury bonds, the calculation would simulate the sale of zero-coupon bonds with a maturity corresponding to the last non-defeased quarterly annuity payment or to the first quarter thereafter if the last non-defeased annuity payment already equaled $75 million. The interest rate would be the same as that for a zero-coupon Treasury bond with the same maturity date. In effect, the Banks are agreeing to pay back the deficit still owed on the quarterly benchmark annuity at a future date, and are being charged interest at the zero-coupon Treasury rate.

Because no quarterly benchmark annuity payment will be more than $75 million, if a payment deficit has a future value of more than $75 million (or raises the value of a partially defeased quarterly benchmark annuity payment to more than $75 million), another quarter will be added at the end of the annuity schedule and the amount in excess of $75 million will be owed in that newly added quarter. The interest rate for a zero-coupon Treasury maturing in the newly added quarter will be used to calculate the future value of such excess amount. The result of these calculations would be to lengthen the end date of the quarterly benchmark annuity payments and effectively extend the Banks' REFCORP obligation. To the extent that the Banks must make any payments beyond the final maturity date of the REFCORP bonds, those payments would be made to the Treasury.

The Finance Board believes the proposed methodology will be simple to implement. The only information needed to calculate the date of the Banks' last REFCORP payment is quarterly net income and the interest rate on zero-coupon Treasury bonds the maturities of which coincide with and bracket the date of the last non-defeased benchmark quarterly payment. The Treasury's Office of Market Finance has indicated that it will provide and certify these rates to the Finance Board, as it does for a number of other agencies. The Treasury uses information from market transactions when it estimates the interest rates on zero-coupon Treasury bonds.

The Finance Board solicits comments on all aspects of the proposed methodology. 4

Section 997.1 of the proposed rule sets forth the definitions for a number of terms used in new part 997.

The term “actual quarterly payment” is defined as the amounts that the Banks actually pay to REFCORP in accordance with a calendar-year quarterly assessment equal to 20 percent of each Bank's quarterly net earnings. The Finance Board understands from discussions with REFCORP that the Banks will continue to make quarterly payments to REFCORP as set forth in the now-existing payment schedule. Specifically, quarterly payments are proposed to be made, as they are now, on January 15, April 15, July 15, and October 15 of each year (or on the next business day if those dates fall on weekends or holidays).

The term “benchmark quarterly payment” is defined as $75 million, which equals one-quarter's payment on the benchmark annuity of $300 million per year prescribed in Gramm-Leach-Bliley, or such amounts that may result from adjustments required by the calculations made in accordance with part 997. The definition, therefore, recognizes that the value of certain benchmark quarterly payments will be adjusted in line with the calculations set forth in proposed §§ 997.2 and 997.3. Initially, the end date for all benchmark quarterly payments will be April 15, 2030, although that date will be adjusted by the calculations made under the proposed rule. The implicit assumption in the proposed rule is that the benchmark quarterly payments are due on the same date that the Banks' actual quarterly payments are due.

By dividing the annual annuity into quarterly payments, the annuity schedule exactly corresponds to the payment schedule of $75 million per quarter that existed prior to the enactment of Gramm-Leach-Bliley. Using a quarterly benchmark annuity payment, therefore, best assures that the Banks' RECORP payments made under Gramm-Leach-Bliley will be compared exactly to the payments that would have been made under the prior law.

The term “current benchmark quarterly payment” is defined in the proposed rule as the benchmark quarterly payment that corresponds to the actual quarterly payment. The current benchmark quarterly payment will almost always equal $75 million. The only exception may occur for the final remaining benchmark quarterly payment if that payment is less than $75 million because of adjustments made under § 997.2 or § 997.3.

The terms “excess quarterly payment” and “deficit quarterly payments” are defined in the proposed rule as the amounts by which the payments actually assessed and made by the Banks to REFCORP either exceed or fall short of the current quarterly benchmark annuity, respectively. These will be the amounts used to simulate the purchase of the zero-coupon Treasury bonds needed to defease future benchmark quarterly payments or used to simulate the sale of the zero-coupon bonds which will effectively extend the term of the Banks' REFCORP obligation.

The term “quarterly present value determination” is defined by the proposed rule to mean the calculation that will be performed under either § 997.2 or § 997.3. More importantly, the definition is designed to provide the method whereby the Finance Board can fulfill the requirement in Gramm-Leach-Bliley that “the [Finance] Board annually shall determine the extent to which the value of the aggregate amounts paid by the Federal home loan banks exceeds or falls short of the value of [the benchmark] annuity.” Public Law 106-102, sec. 607 113 Stat. 1456 ( amending 12 U.S.C. 1441b(f)(2)(C)(ii)).

The proposed quarterly determination reflects the longstanding practice that the Banks pay REFCORP quarterly. More importantly, a calculation on other than a quarterly basis, for example on an annual basis, would not give the Banks credit for the time value of money associated with excess quarterly payments. Conversely, an annual calculation would not charge the Banks any interest during a year for a deficit quarterly payment. The Finance Board believes its proposal is consistent with the requirements of Gramm-Leach-Bliley. Further, the Finance Board believes that making its determination quarterly and at the same time when the Banks make their actual REFCORP payments will best serve Gramm-Leach-Bliley's goal of assuring that the change in the method of assessing the Banks' obligation will not increase or decrease the burden of paying interest on the REFCORP bonds either for the Banks or the Treasury. The Finance Board recognizes that, if the quarterly payment schedule for the Banks' REFCORP obligations changes, corresponding modifications to these rules may be necessary.

Section 997.2 sets forth the calculation that the Finance Board proposes to use to determine the amount by which the term of the Banks' REFCORP obligation will be reduced when the Banks actual quarterly payment results in an excess quarterly payment. Under § 997.2 of the proposed rule, the future value of any excess quarterly payment would be calculated using the interest rate on a zero-coupon Treasury bond rate that matures on the date of the last outstanding benchmark quarterly payment. The interest rate will be obtained from the Treasury and will be the spot interest rate for the relevant Treasury zero-coupon bond as of the day of the Banks' actual quarterly payment. The future value calculation set forth in § 997.2 of the proposed rule is the mathematical equivalent of the calculations discussed in the explanation in Part I above. Specifically, the calculation described in the proposed rule is equivalent to calculating the present value, or “cost,” of a zero-coupon Treasury bond with a par amount and maturity date that are the same as the amount and due date for the last non-defeased benchmark quarterly payment.

The applicable interest rate would always be for a zero-coupon Treasury bond maturing on the due date of the benchmark quarterly payment that is affected by the defeasance calculation. Therefore, where an excess quarterly payment is sufficiently large so that more than one benchmark quarterly payment can be defeased, additional calculations would be made with respect to the future value amount remaining after the last outstanding benchmark quarterly payment has been defeased. First, the future value calculation for this residual amount would be reversed. Then, a new future value for the resulting residual excess quarterly payment would be calculated using the interest rate for a zero-coupon Treasury bond maturing in the quarter immediately prior to the one for which the benchmark quarterly payment had just been defeased.

Given the proposed calculation, an excess quarterly payment would always result in removing from the benchmark annuity schedule both the current benchmark quarterly payment and all or part of the most-distant, outstanding quarterly benchmark payment(s) still remaining on the schedule.

Section 997.3 of the proposed rules sets forth the calculation that the Finance Board proposes to use to determine the amount by which the term of the Banks' REFCORP obligation will be extended if the Banks actual quarterly payment results in a deficit quarterly payment. The future value calculation under this section is proposed to be the same as the one described for proposed § 997.2, except that the amount resulting from the calculation will be added to the last outstanding partial quarterly benchmark payment. Where the last outstanding quarterly benchmark payment is $75 million, the future value of the deficit quarterly payment would be applied to a new quarterly payment extending the annuity schedule. In no case would a benchmark quarterly payment exceed $75 million.

The zero-coupon interest rate used in the proposed calculation would always correspond to a zero-coupon Treasury bond maturing in the quarter for which a new benchmark quarterly payment is being adjusted upward or which is being added to the annuity schedule. Given the proposed calculation, a deficit quarterly payment would always result in removing from the benchmark annuity schedule the current benchmark quarterly payment but adding amounts to the last outstanding benchmark quarterly payment or adding new benchmark quarterly payments to the schedule. The proposed rule makes clear that the Finance Board would act on its authority to extend the Banks REFCORP payment obligation beyond April 15, 2030, if required to do so based upon the calculations made under this section. See Public Law 106-102, sec. 607, 113 Stat. 1455-56 ( amending 12 U.S.C. 1441b(f)(2)(C)(iii) and (iv)).

Section 997.4 of the proposed rule is based upon the assumption that REFCORP will make the calculations required under §§ 997.2 and 997.3, and provide the results of the calculations to the Finance Board. The Finance Board understands that REFCORP is willing and able to perform this task. Moreover, the Finance Board believes that REFCORP is the best entity to calculate the quarterly present-value determination. A REFCORP model is currently used both to assess the Banks' actual quarterly payments and to calculate the Banks' required AHP payments. It would be relatively simple to adjust the existing REFCORP model to perform the calculations required under this part. Allowing REFCORP both to estimate the Banks' quarterly payment assessment and to calculate the quarterly present-value determination would also centralize the relevant calculations in one entity, and thus facilitate the supervision and auditing of the process set forth in this rule.

As proposed, § 997.4 requires the Finance Board to obtain from Treasury the zero-coupon Treasury bond interest rates needed to complete the calculations and provide those rates to REFCORP. REFCORP, itself, will know the value of the Banks' actual quarterly payments since REFCORP collects those payments from the Banks. The Finance Board would maintain the official record of the results of the calculations. Section 997.4 of the proposed rule also makes clear that the Finance Board will perform the calculations required under this part if the Banks' payment obligations extend beyond April 15, 2030 or if REFCORP is for any reason unable to perform the calculations or make the results known to the Finance Board. With respect to the date of April 15, 2030, REFCORP is to be dissolved “as soon as practicable, after the maturity and full payment of all obligations issued by [it],” 12 U.S.C. 1441b(j), which occurs on April 15, 2030, when the last REFCORP bond matures, and this contingency provision has been included in case the term of the Banks' payment obligation has been extended beyond that date.

Section 997.5 of the proposed rules establishes a method for determining when the Banks' obligation to pay REFCORP will terminate. Gramm-Leach-Bliley provides that the Finance Board must extend or shorten the Banks' payment obligation to REFCORP until such time as “the value of all payments made by the Banks is equivalent to the value of [the benchmark] annuity [described therein].” Public Law 106-102, sec. 607, 113 Stat. 1455-56 ( amending 12 U.S.C. 1441b(f)(2)(C)(iii)). This will occur when the actual quarterly payment, after performing any calculation required by proposed § 997.2, equals the last outstanding quarterly benchmark payment(s). It should be noted that if the sole remaining outstanding quarterly benchmark payment is less than $75 million because of adjustments made under proposed §§ 997.2 and 997.3, the Banks will terminate their obligation as long as 20 percent of net earnings at least equals that outstanding amount, even if 20 percent of net earnings is less than $75 million.

Gramm-Leach-Bliley requires the Banks' REFCORP obligation to terminate when the aggregate value of their payments equals the value of the benchmark annuity. To ensure that these values are equal, the final actual quarterly payment (after making any calculation required by proposed § 997.2) made by the Banks must not be more than any outstanding benchmark quarterly payment(s). This would require the final actual quarterly payment to be reduced if 20 percent of the Banks' quarterly net earnings exceeds the amounts needed to cover the outstanding benchmark quarterly payment(s). In fact, Gramm-Leach-Bliley specifically directs the Finance Board to pro rate the final REFCORP payment to assure the equivalence in the value of the Banks' aggregate payments and the benchmark annuity, if the final payment occurs after April 15, 2030. See Public Law 106-102, sec. 607, 113 Stat. 1455-56 ( amending 12 U.S.C. 1441b(f)(2)(C)(iv)). However, if the Banks' final payment occurs before April 15, 2030, the authority to assess the Banks' quarterly payments will continue to rest with REFCORP, acting under the supervision of Treasury, see 12 U.S.C. 1441b and 12 CFR part 1510, and REFCORP would need to make any required adjustments.

The wording of § 997.5 also reflects the fact that Gramm-Leach-Bliley requires the Banks to make their payments to REFCORP until April 15, 2030 and directly to Treasury after that date. Public Law 106-102, sec. 607, 113 Stat. 1455-56 ( amending 12 U.S.C. 1441b(f)(2)(C)(i) and (iv)).

The Finance Board is also proposing to amend the definition of the term “net earnings of a Bank” as used in the Finance Board's Affordable Housing Program regulation and set forth in recently proposed redesignated 12 CFR 951.1 (formerly 12 CFR 960.1) (64 FR 52148, September 27, 1999). The amendment is technical in nature and reflects the fact that under the Gramm-Leach-Bliley amendments, each Bank will pay to REFCORP an amount equal to 20 percent of its net earnings rather than a pro rata amount of the Bank System's fixed annual contribution of $300 million, as required under the prior law. Accordingly, the Finance Board is proposing to delete the words “pro rata share of the” from the definition of “net earnings of a Bank” in § 951.1.

The proposed rule applies only to the Finance Board and to the Banks, which do not come within the meaning of small entities as defined in the Regulatory Flexibility Act (RFA). See 5 U.S.C. 601(6). Therefore, in accordance with section 605(b) of the RFA, 5 U.S.C. 605(b), the Finance Board hereby certifies that this proposed rule, if promulgated as a final rule, will not have a significant economic effect on a substantial number of small entities.

The proposed rule does not contain any collections of information pursuant to the Paperwork Reduction Act of 1995. See 33 U.S.C. 3501 et seq. Therefore, the Finance Board has not submitted any information to the Office of Management and Budget for review.

For the reasons set forth in the preamble, the Finance Board proposes to amend 12 CFR chapter IX as follows:

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 99-SW-73-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Office of the Regional Counsel, Southwest Region, Attention: Rules Docket No. 99-SW-73-AD, 2601 Meacham Blvd., Room 663, Fort Worth, Texas 76137.

Luftfahrt-Bundesamt (LBA), the airworthiness authority for the Federal Republic of Germany, notified the FAA that an unsafe condition may exist on ECD Model MBB-BK 117 A-1, A-3, A-4, B-1, B-2, and C-1 helicopters. The LBA advises that the cowling doors should be modified to install a hook on each cowling door and install the respective hook retainers on the engine floor and on the transmission floor.

ECD has issued Service Bulletin No. MBB-BK 117-20-109, Revision 2, dated April 30, 1999 (SB), which specifies modifying the cowling doors by installing a hook on each cowling door and installing the respective hook retainers on the engine and transmission floor to prevent cowling doors opening fully during flight. The LBA has classified the ECD SB as mandatory and issued AD No. 1999-302, dated September 23, 1999, to ensure the continued airworthiness of these helicopters in the Federal Republic of Germany.

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

Since an unsafe condition has been identified that is likely to exist or develop on other ECD Model MBB-BK 117 A-1, A-3, A-4, B-1, B-2, and C-1 of the same type designs registered in the United States, the proposed AD would require modifying the cowling doors to prevent the cowling doors from opening during flight. The actions would be required to be accomplished in accordance with the SB described previously.

The FAA estimates that 140 helicopters of U.S. registry would be affected by this proposed AD, that it would take approximately 28 work hours per helicopter to accomplish the proposed actions, and that the average labor rate is $60 per work hour. Required parts would cost approximately $1620 per helicopter. Based on these figures, the total cost impact of the proposed AD on U.S. operators is estimated to be $462,000.

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

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 99-NM-374-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 99-NM-374-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The FAA has received several reports indicating ice accumulation on the aileron control cables in the wheel well of the main landing gear (MLG) during flight on certain Model 767 series airplanes. The ice build-up was attributed to fluid from the sloping pressure deck leaking into the wheel well and freezing. One operator reported a large volume of fluid had leaked into the canted pressure deck area and ice had accumulated on the MLG door and door seal inside and outside the MLG wheel well. The ice caused the MLG door to jam and prevented extension of the MLG. Investigation revealed that fluid entered the canted pressure deck area through the sloping pressure deck seals and subsequently leaked into the wheel well and solidified. Such ice accumulation could render one of the aileron control systems and/or the MLG doors inoperative, resulting in reduced controllability of the airplane.

The FAA has reviewed and approved Boeing Service Bulletin 767-51A0020, Revision 1, dated July 22, 1999, which describes procedures for modification of the canted pressure deck drain system in the wheel well of the MLG. The modification includes, among other things, installation of canisters on the outboard pressure activated drain lines, re-routing of the existing drain lines, and installation of larger diameter drain lines to drain the water out through the underwing fairing thermal panel into the hot air stream from the ram outlets.

Accomplishment of the actions specified in the service bulletin described previously is intended to adequately address the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require modification of the canted pressure deck drain system in the wheel well of the MLG. The actions would be required to be accomplished in accordance with the service bulletin described previously, except as discussed below.

Operators should note that, although the service bulletin recommends accomplishment of the modification at the first available maintenance period as soon as parts, manpower, and facilities are available, the FAA has determined that a 24-month compliance time would address the identified unsafe condition in a timely manner. In developing an appropriate compliance time for this AD, the FAA considered not only the manufacturer's recommendation, but the degree of urgency associated with addressing the subject unsafe condition, the average utilization of the affected fleet, and the time necessary to perform the modification. In light of all of these factors, the FAA finds a 24-month compliance time for completion of the proposed modification to be warranted, in that it represents an appropriate interval of time allowable for affected airplanes to continue to operate without compromising safety.

There are approximately 716 Model 767 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 278 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 15 work hours per airplane to accomplish the proposed modification, and that the average labor rate is $60 per work hour. Required parts would cost approximately $6,623 per airplane. Based on these figures, the cost impact of the modification proposed by this AD on U.S. operators is estimated to be $2,091,394, or $7,523 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted.

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

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

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

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

The proposals contained in this notice may be changed in light of the comments received.

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 99-NM-369-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 99-NM-369-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The Rijksluchtvaartdienst (RLD), which is the airworthiness authority for the Netherlands, notified the FAA that an unsafe condition may exist on all Fokker Model F.28 Mark 0070 and 0100 series airplanes. The RLD advises that in February 1988, during a routine scheduled flight, a Fokker Model F.28 Mark 0100 series airplane was struck by lightning. The report indicated that the No. 2 hydraulic system's “Low Quantity Warning” occurred; shortly thereafter, the same warning occurred on the No. 1 hydraulic system. Although only the hydraulic accumulator-driven systems remained available after the “Total Hydraulic Failure” procedure was accomplished, the flight crew was able to land the airplane safely. Investigation revealed that the lightning current penetrated the vertical stabilizer and bonding jumper of the horizontal stabilizer.

At present, on Fokker Model F.28 Mark 0070 and 0100 series airplanes, only a single bonding jumper is installed between the vertical and horizontal stabilizer on the left-hand side. (Currently, no bonding jumper is installed on the right-hand side.) Reports indicate that a bonding jumper had melted, although it is unclear whether this was due to the lightning strike event preceding the hydraulic systems failure, or due to an earlier event. In either case, because the bonding jumper failed, the electrical arcing that resulted from the lightning strike damaged the hydraulic lines.

Further investigation revealed that the existing bonding jumper installation is not adequate to meet certain requirements, and the RLD advises that it is necessary to improve the electrical bonding of the horizontal stabilizer. Inadequate electrical bonding between the horizontal and vertical stabilizers, in the event of a lightning strike, could cause electrical arcing, and result in damage to the hydraulic lines and consequent failure of the hydraulic systems.

Fokker has issued Service Bulletin SBF100-23-032, dated September 22, 1999, which describes procedures for installing new, improved bonding jumpers on the horizontal stabilizer. On the left-hand side of the horizontal stabilizer, installation procedures include removing the existing bonding jumper of the horizontal stabilizer torsion box and replacing it with a new, improved bonding jumper; removing and discarding the existing fasteners; and ensuring that the fastener holes are in proper condition. On the right-hand side of the horizontal stabilizer, installation procedures include drilling new fastener holes in the horizontal stabilizer hinge fitting and in the lower skin of the horizontal stabilizer torsion box; deburring all drilled holes; and installing a new, improved bonding jumper. The Fokker service bulletin references Fokker 70/100 Aircraft Maintenance Manual (AMM), Chapter 20-13-05, as an additional source of service information to accomplish the installation of the new bonding jumpers.

Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition. The RLD classified this service bulletin as mandatory and issued Dutch airworthiness directive 1999-128(A), dated October 29, 1999, in order to assure the continued airworthiness of these airplanes in the Netherlands.

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

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

Operators should note that, although the service bulletin recommends a compliance time of 24 months for accomplishment of the actions specified in the service bulletin, the RLD has mandated a compliance time of 18 months. The FAA concurs with the RLD and has determined that an 18-month compliance time would have a limited impact on the operators while ensuring the continued safety of the fleet. In determining the proposed compliance time, the FAA considered the safety implications, average utilization rate of the affected fleet, and availability of required modification parts. In light of this, the FAA considers that the proposed compliance time of 18 months is appropriate.

The FAA estimates that 129 Fokker Model F.28 Mark 0070 and 0100 series airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 2 work hours per airplane to accomplish the proposed actions, and that the average labor rate is $60 per work hour. Required parts would cost approximately $69 per airplane. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $24,381, or $189 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted.

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

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 99-NM-65-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 99-NM-65-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

On May 26, 1991, a Boeing Model 767-300ER series airplane was involved in an accident as a result of an uncommanded in-flight deployment of a thrust reverser. Following that accident, a study was conducted to evaluate the potential effects of an uncommanded thrust reverser deployment throughout the flight regime of the Boeing Model 747 series airplane. The study included a re-evaluation of the thrust reverser control system fault analysis and airplane controllability. The results of the evaluation indicated that, in the event of thrust reverser deployment during high-speed climb using high engine power, these airplanes also could experience control problems. This condition, if not corrected, could result in possible failure modes in the thrust reverser control system, inadvertent deployment of a thrust reverser during flight, and consequent reduced controllability of the airplane.

The FAA has prioritized the issuance of AD's for corrective actions for the thrust reverser system on Boeing airplane models following the 1991 accident. Based on service experience, analyses, and flight simulator studies, it was determined that an in-flight deployment of a thrust reverser has more effect on controllability of twin-engine airplane models than of Model 747 series airplanes, which have four engines. For this reason, the highest priority was given to rulemaking that required corrective actions for the twin-engine airplane models. AD's correcting the same type of unsafe condition addressed by this AD have been previously issued for specific airplanes within the Boeing Model 737, 757 and 767 series.

Service experience has shown that in-flight thrust reverser deployments have occurred on Model 747 airplanes during certain flight conditions with no significant airplane controllability problems being reported. However, the manufacturer has been unable to establish that acceptable airplane controllability would be achieved following these deployments throughout the operating envelope of the airplane. Additionally, safety analyses performed by the manufacturer and reviewed by the FAA, has been unable to establish that the risks for uncommanded thrust reverser deployment during critical flight conditions is acceptably low.

The FAA has reviewed and approved the following Boeing Service Bulletins:

• 747-78A2159, dated May 18, 1995, which describes procedures for repetitive inspections and tests of the thrust reverser control and indication system to detect discrepancies, and corrective action, if necessary. The corrective action includes, among other things, repair or replacement of any discrepant parts with new parts.

• 747-78-2153, Revision 1, dated November 27, 1996, which describes procedures for installation of an additional locking system on the thrust reversers. This service bulletin references the following service bulletins:

1. Boeing Service Bulletin 747-78-2135, dated August 31, 1995, which describes procedures for the installation of provisional wiring for an additional thrust reverser locking device.

2. Boeing Service Bulletin 747-78A2149, Revision 1, dated May 9, 1996, and Revision 2, dated August 29, 1996, which describe procedures for inspection of the thrust reverser control system wiring to detect damaged wires; modification of certain wiring, and an operational test of the thrust reverser. This service bulletin references Boeing Standard Wiring Practices Manual, which describes procedures for repair or replacement of certain wire bundles, if necessary.

3. Rohr Service Bulletin TBC-CNS 78-33, Revision 1, dated August 20, 1996, which describes additional procedures for installation of an additional locking system on the thrust reversers.

Accomplishment of Boeing Service Bulletin 747-78-2153, Revision 1, requires prior or concurrent accomplishment of Boeing Service Bulletins 747-78-2135 and 747-78A2149, Revision 1 or Revision 2; and concurrent accomplishment of Rohr Service Bulletin TBC-CNS 78-33, Revision 1. Accomplishment of these actions would eliminate the need for certain repetitive inspections and tests.

The FAA also has reviewed and approved Rohr Service Bulletin TBC-CNS 78-32, Revision 1, dated August 20, 1996, which describes procedures for modification of the thrust reverser control system wiring concurrent with accomplishment of Boeing Service Bulletin 747-78A2149, Revision 1 or Revision 2.

The modification procedures described by Boeing Service Bulletins 747-78-2153, and 747-78-2135 were previously validated by the manufacturer, and the necessary changes have been incorporated into the latest revisions of the service bulletins. The FAA has determined that the procedures specified in Boeing Service Bulletins 747-78-2153, Revision 1, and 747-78-2135, as well as the other service bulletins referenced in this proposed AD, have been effectively validated and therefore proposes that this modification be required.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, this proposed AD would require inspection of the thrust reverser control and indication system and wiring on each engine, and corrective action, if necessary; and eventual modification of the wiring. This proposal also would require installation of a terminating modification and repetitive functional tests of that installation to detect discrepancies, and repair, if necessary. The actions would be required to be accomplished in accordance with the service bulletins described previously, except as discussed below.

Repetitive functional tests to detect discrepancies of the actuation system lock on each thrust reverser would be required to be accomplished in accordance with the procedure included in Appendix 1 of this AD. Correction of any discrepancy detected would be required to be accomplished in accordance with the procedures described in the Boeing 747 Airplane Maintenance Manual.

Operators should note that, although Boeing Service Bulletin 747-78-2153, Revision 1, does not recommend a specific compliance time for accomplishment of the actuation system lock installation, the FAA has determined that an unspecified compliance time would not address the identified unsafe condition in a timely manner. In developing an appropriate compliance time for this AD, the FAA considered not only the manufacturer's recommendation, but the degree of urgency associated with addressing the subject unsafe condition, the average utilization of the affected fleet, and the time necessary to perform the installation. In light of all of these factors, the FAA finds a 36-month compliance time for completing the required actions to be warranted, in that it represents an appropriate interval of time allowable for affected airplanes to continue to operate without compromising safety.

Operators also should note that, although the service bulletin does not specify repetitive functional testing of the actuation system lock installation following accomplishment of that installation, the FAA has determined that repetitive functional tests of the actuation system lock on each thrust reverser will support continued operational safety of thrust reversers with actuation system locks.

There are approximately 7 Model 747 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 6 airplanes of U.S. registry would be affected by this proposed AD.

It would take approximately 32 work hours (8 work hours per engine) per airplane, to accomplish the proposed thrust reverser inspection, modification, and test, described in 747-78A2149, Revision 1, or Revision 2, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $11,520, or $1,920 per airplane.

It would take approximately 8 work hours (2 work hours per engine) per airplane, to accomplish the proposed 1,000-flight-hour inspections described in Boeing Service Bulletin 747-78A2159, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the inspection proposed by this AD on U.S. operators is estimated to be $2,880, or $480 per airplane, per inspection cycle.

It would take approximately 20 work hours (5 work hours per engine) per airplane, to accomplish the proposed 18-month thrust reverser system checks described in Boeing Service Bulletin 747-78A2159, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the test proposed by this AD on U.S. operators is estimated to be $7,200, or $1,200 per airplane, per test cycle.

It would take approximately 544 work hours per airplane, to accomplish the proposed provisional wiring, at an average labor rate of $60 per work hour. Required parts would be provided by the manufacturer at no cost to the operators. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $195,840, or $32,640 per airplane.

It would take approximately 593 work hours per airplane, to accomplish the proposed sync lock installation, at an average labor rate of $60 per work hour. Required parts would be provided by the manufacturer at no cost to the operators. Based on these figures, the cost impact of the installation proposed by this AD on U.S. operators is estimated to be $213,480, or $35,580 per airplane.

It would take approximately 4 work hours per airplane, to accomplish the proposed functional test of the additional locking system, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the test proposed by this AD on U.S. operators is estimated to be $1,680, or $240 per airplane, per test cycle.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted.

The regulations proposed herein would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this proposal would not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

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

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

This document concerns Monterey Bay Unified Air Pollution Control District Rule 207, Review of New or Modified Sources, submitted to EPA on October 29, 1999 by the California Air Resources Board. For further information, please see the information provided in the direct final action that is located in the rules section of this Federal Register .

The rule being proposed for approval into the California SIP is Kern County Air Pollution Control District (KCAPCD) Rule 425.1, Hot Mix Asphalt Paving Plants (Oxides of Nitrogen). Rule 425.1 was submitted by the State of California to EPA on October 19, 1994.

On November 15, 1990, the Clean Air Act Amendments of 1990 were enacted. Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q. The air quality planning requirements for the reduction of NO X emissions through reasonably available control technology (RACT) are set out in section 182 (f) of the Clean Air Act.

On November 25, 1992, EPA published a proposed rule entitled, “State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; Proposed Rule,” (the NO X supplement) which describes and provides preliminary guidance on the requirements of section 182(f). The NO X Supplement should be referred to for further information on the NO X requirements.

Section 182 (f) of the Clean Air Act requires States to apply the same requirements to major stationary sources of NO X (“major” as defined in section 302 and sections 182(c), (d), and (e)) as are applied to major stationary sources of volatile organic compound (VOCs), in moderate or above ozone nonattainment areas. KCAPCD is classified as serious;  1 therefore this area is subject to the RACT requirements of section 182(b)(2) and the November 15, 1992 deadline cited below.

Section 182(b)(2) requires submittal of RACT rules for major stationary sources of VOC (and NO X ) emissions (not covered by a pre-enactment control technologies guidelines (CTG) document or a post-enactment CTG document) by November 15, 1992. There were no NO X CTGs issued before enactment and EPA has not issued a CTG document for any NO X sources since enactment of the CAA. The RACT rule covering NO X sources and submitted as a SIP revision requires final installation of the actual NO X controls as expeditiously as practicable, but no later than May 31, 1995.

This document addresses EPA's proposed action for Kern County Air Pollution Control District (KCAPCD) Rule 425.1, Hot Mix Asphalt Paving Plants (Oxides of Nitrogen), adopted by the KCAPCD on October 13, 1994. The State of California submitted Rule 425.1 to EPA October 19, 1994. Rule 425.1 was found to be complete on October 21, 1994, pursuant to EPA's completeness criteria that are set forth in 40 CFR Part 51, Appendix V.  2

NO X emissions contribute to the production of ground level ozone and smog. KCAPCD Rule 425.1 specified exhaust emission standards for NO X , and was originally adopted as part of KCAPCD's effort to achieve the National Ambient Air Quality Standard (NAAQS) for ozone, and in response to the CAA requirements cited above. The following is EPA's evaluation and proposed action for the rule.

In determining the approvability of a NO X rule, EPA must evaluate the rule for consistency with the requirements of the CAA and EPA regulations, as found in section 110 and Part D of the CAA and 40 CFR Part 51 (Requirements for Preparation, Adoption, and Submittal of Implementation Plans). Among those provisions is the requirement that a NO X rule must, at a minimum, provide for the implementation of RACT for stationary sources of NO X emissions. The EPA interpretation of these requirements, which forms the basis for today's action, appears in the NO X Supplement (57 FR 55620) and various other EPA policy guidance documents. 3

For the purpose of assisting State and local agencies in developing NO X RACT rules, EPA prepared the NO X Supplement to the General Preamble. In the NO X Supplement, EPA provides preliminary guidance on how RACT will be determined for stationary sources of NO X emissions. While most of the guidance issued by EPA on what constitutes RACT for stationary sources has been directed towards application for VOC sources, much of the guidance is also applicable to RACT for stationary sources for NO X (see section 4.5 of the NO X Supplement). In addition, pursuant to section 183(c), EPA is issuing alternative control technique documents (ACTs), that identify alternative controls for all categories of stationary sources of NO X . The ACT documents will provide information on control technology for stationary sources that emit or have the potential to emit 25 tons per year or more of NO X . However, the ACTs will not establish a presumptive norm for what is considered RACT for stationary sources of NO X .

In addition, the California Air Resources Board (CARB) is developing a guidance document entitled, “California Clean Air Act Guidance, Determination of Reasonably Available Control Technology and Best Available Retrofit Control Technology for Institutional, Industrial and Commercial Boilers, Steam Generators and Process Heaters,” July 18, 1991. EPA has used CARB's RACT Determination, dated July 18, 1991, in evaluating Rule 425.1 for consistency with the CAA's RACT requirements. In general, EPA uses the guidance documents cited above, as well as other relevant and applicable guidance documents, to ensure that submitted NO X RACT rules meet Federal RACT requirements and are fully enforceable and strengthen or maintain the SIP.

There is currently no version of Kern County Air Pollution Control District Rule 425.1, Hot Mix Asphalt Paving Plants (Oxides of Nitrogen), in the SIP. Submitted Rule 425 includes the following provisions:

• General provisions including applicability, exemptions, and definitions.

• Exhaust emmissions standards for oxides of nitrogen (NO X ).

• Compliance and monitoring requirements including compliance schedule, reporting requirements, monitoring and record keeping, and test methods.

Rules submitted to EPA for approval as revisions to the SIP must be fully enforceable, must maintain or strengthen the SIP and must conform with EPA policy in order to be approved by EPA. When reviewing rules for SIP approvability, EPA evaluates enforceability elements such as test methods, record keeping, and compliance testing in addition to RACT guidance regarding emission limits. Rule 425.1 strengthens the SIP through the addition of enforceable measures such as emissions limits, record keeping, test methods, definitions, and more stringent compliance testing. Because there is no existing rule in the SIP, the incorporation of Rule 425.1 into the SIP would decrease the NO X emissions allowed by the SIP. A more detailed discussion of the sources controlled, the controls required, and justification for why these controls represent RACT can be found in the Technical Support Document (TSD), dated December 1, 1999, which is available from the U.S. EPA, Region IX office.

EPA has evaluated the submitted rule and has determined that it is consistent with the CAA, EPA regulations and EPA policy. Therefore, Kern County Air Pollution Control District Rule 425.1 is being proposed for approval under section 110(k)(3) of the CAA is meeting the requirements of section 110(a), section 182(b)(2), section 182(f) and the NO X Supplement to the General Preamble.

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

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612, Federalism and 12875, Enhancing the Intergovernmental Partnership. Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This proposed rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under E.O. 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This rule is not subject to E.O. 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

Under Executive Order 13084, Consultation and Coordination with Indian Tribal Governments, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies and matters that significantly or uniquely affect their communities.” Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of E.O. 13084 do not apply to this rule.

The Regulatory Flexibility Act (FRA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. This final rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

Under Section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated annual costss to State, local, or tribal governments in the aggregate; or to private sector, of $100 million or more. Under Section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated annual costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

When SAMHSA first implemented the SAPT Block Grant program, a primary concern was affording States sufficient time to develop the increased information required to apply for a grant under this program as compared to the generally less detailed application required under the predecessor ADMS Block Grant program administered by ADAMHA  1 . This was accomplished by affording States the opportunity to delay submitting their applications to as late as March 31, fully six months into the fiscal year for which funding is requested (See 45 CFR 96.122(d). This relatively late receipt date results in insufficient time to administer the SAPT Block Grant program in accordance with all the governing provisions of law. This is most noted under circumstances calling for the clarification of application data and, if necessary, the conduct of hearings related to certain adverse decisions needing resolution by the end of the fiscal year. A tentative adverse decision requires that the applicant be provided an opportunity for a hearing consistent with section 1945(e) of the Public Health Service (PHS) Act, and there remains, as a practical matter, insufficient time in the fiscal year to provide a hearing, reach a final decision, and possibly redistribute withheld funds to the remaining applicants as provided by law (see section 1944 of the PHS Act).

States are now fully aware of the application requirements and can reasonably be expected to respond to an earlier submission date. However, if a State determines that it will not be able to submit by October 1 either the report as required at 45 CFR 96.130(e) on Synar enforcement efforts and State success in reducing youth access to tobacco products during the preceding fiscal year, or the information on State expenditures during the preceding year as required at 45 CFR 96.134(d), the State may request an extension of the due date(s) for a limited period, not to extend past December 31 of the fiscal year for which application is made. The request for the extension must be signed by the official with the authority to apply for the grant or the Governor, and must be submitted no later than September 1 of the prior fiscal year. The extension request must state for which requirement the extension is requested; include an explanation of why the State is unable to comply with the due date of October 1; state the date of submission the State is requesting; and discuss whether there are steps the State can take to avoid requiring an extension in future years.

Due date extensions for these requirements shall be granted in writing by the SAMHSA official with delegated authority to grant the extension.

The Department considered several alternatives for addressing the issue of timely application submission including an inflexible deadline without provision for extension, and no change in the current due date in recognition of State indications that timely submission of these reports can be more difficult for some States than others. It is SAMHSA's intent to move the application date to October 1 as proposed by this notice unless comments provide compelling reasons to do otherwise. Therefore, States should be preparing to submit their applications by October 1, 2000 for fiscal year 2001 funding.

This rule does not have cost implications for the economy of $100 million or otherwise meet the criteria for a major rule under Executive Order 12291, and therefore does not require a regulation impact analysis. Further, this regulation will not have a significant impact on a substantial number of small entities, and therefore does not require a regulatory flexibility analysis under the Regulatory Flexibility Act of 1980.

This regulation would require States to submit their applications for Substance Abuse Prevention and Treatment Block Grant funds by October 1 of the fiscal year for which they are seeking funds. States in the past have had until March 31 to submit the application. This late due date (March 31) does not give the agency sufficient time to carry out its responsibilities under the law.

SAMHSA consulted with the State organizations in the development of legislative proposals concerning the application due date and in the crafting of this NPRM. Most States indicated that they have become familiar with the application and that it would not be an undue hardship on them to meet this new requirement if there can be an extension until December 31 with regard to both maintenance of effort and Synar information. Since proposed Section 96.122(d) allows for such an extension with regard to these elements of the applications, we do not believe that there is a significant Federalism impact.

This proposal is not a significant regulatory action under Section 3(f) of the Executive Order 12866 and does not require an assessment of the potential costs and benefits under Section 6(a)(3) of that Order and so has been exempted from review by the Office of Management and Budget under that Order.

This proposed rule contains information collections which are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (the PRA)(44 U.S.C. 3507(d)). The title, description and respondent description of the information collections are shown in the following paragraphs with an estimate of the annual reporting and recordkeeping burden. Included in the estimate is the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Title: Application Deadline for SAPT Block Grant Program

Description: The Secretary is proposing to issue regulations to change the receipt date of SAPT Block Grant applications starting with the Federal Fiscal Year (FY) 2001 from March 31 to October 1. All elements of the application reporting requirements would be due October 1. However, States may request an extension of time for reporting State expenditures necessary to determine compliance with the Maintenance of Effort (MOE) requirement and/or to submit required Synar information for a period up to December 31. This change will allow HHS to review grant applications and make grant awards to all States earlier in the fiscal year. It will also provide additional time for sufficient planning in the event of any penalty actions that may be required, while recognizing the inability of some States to report the MOE and Synar data prior to December 31.

Description of Respondents: State and tribal governments.

Response burden estimate: Information collection language for the current rule is approved by OMB under control number 0930-0165 (Synar reporting requirements on youth access to tobacco) and control number 0930-0162 (for all other aspects of the annual application). The Substance Abuse Prevention and Treatment Block Grant uniform application format for FY 2000-FY 2002 is approved by OMB under control number 0930-0080. None of the specifics of these reporting requirements are being changed. Only the due date of the uniform application is impacted by this proposed rule.

At present, approximately half of all eligible block grant applicants routinely submit their uniform application for block grant funds on or before September 30 of the fiscal year preceding the fiscal year for which they are applying for funds. Approximately one half of all eligible applicants submit their uniform applications between October 1 and March 31 of the fiscal year for which block grant funds are being made available.

SAMHSA recognizes that the earlier receipt date will have an impact on the applicants, particularly those that have typically submitted their uniform application after September 30. Since the contents of the uniform application are not changing, it is difficult to estimate the additional response burden and associated costs for the first year of this change of receipt date (no additional burden is estimated for this change for future years). Therefore, a nominal response burden for each applicant of one hour is provided. In addition, it is conservatively assumed that all applicants will request an extension of the MOE and Synar reporting, and one hour is estimated for preparation of such a request.

Thus, for the first year of implementation, total response burden is estimated at 120 hours. For subsequent years, the burden estimate is 60 hours. Comments on these estimates are invited.

On July 31, 1998, we received a petition dated July 30, 1998, from the National Wildlife Federation (National Wildlife Federation 1998). The Petitioner requested that we list the black-tailed prairie dog as threatened throughout its range. The Petitioner also requested that the species be afforded emergency listing. Section 4 of the Act and regulations at 50 CFR 424 do not provide for petitions to request the listing of species on an emergency basis. However, section (4)(b)(7) of the Act and the Service's Listing Priority Guidance (63 FR 25502) direct that all petitions are to be reviewed to determine if an emergency listing is appropriate. We determined and advised the Petitioner by letter dated August 27, 1998, that it would be inappropriate to list this species on an emergency basis given its then known status. On September 16, 1999, the Petitioner requested that we readdress this issue based on reports of increased control efforts (Graber, National Wildlife Federation, in litt. 1999). We have reevaluated information available regarding this subject and determined that emergency listing of the species is not appropriate at this time.

Section 4(b)(3)(A) of the Act requires that, for any petition to revise the List of Threatened and Endangered Species containing substantial scientific and commercial information that listing may be warranted, we make a positive 90-day finding and initiate a status review of the species. We published a notice of a positive 90-day finding on the subject petition in the Federal Register on March 25, 1999 (64 CFR 14425). Accordingly, the subject petition requires a 12-month administrative finding pursuant to section 4(b)(3)(B) on whether the petitioned action is—(I) not warranted, (ii) warranted, or (iii) warranted but precluded from immediate proposal by other higher priority efforts to revise the List of Threatened and Endangered Species. When we find a petition to list a species is warranted but precluded, the species is designated a candidate species.

We believe that sufficient information is currently available to support a finding that listing the black-tailed prairie dog as threatened is warranted, but that a proposed rule at this time is precluded by work on other higher priority listing actions. We will reevaluate the status of the species in 1 year. The information contained in this notice is a summary of the information in the 12-month finding.

The National Wildlife Federation petition presented extensive information regarding the biology of the black-tailed prairie dog. This information included a description of the species and its range, as well as comments related to its population biology and trend. The Petitioner noted that the species still occurs intermittently throughout most of its historic range, although much reduced in numbers and in the amount of habitat that it occupies. The Petitioner contrasted reports that the black-tailed prairie dog once occupied as much as 100-200 million acres (ac) (40-80 million hectares (ha)) of the western North American prairie with current estimates of occupied habitat and concluded that the species' habitat has been reduced by at least 99 percent. The Petitioner attributed reductions in occupied habitat to habitat loss and degradation related to the conversion of prairie grasslands to farmland, extensive control, disease, urban development, unregulated shooting, and other factors.

On August 26, 1998, we received another petition regarding the black-tailed prairie dog from the Biodiversity Legal Foundation, the Predator Project, and Jon C. Sharps (Biodiversity Legal Foundation et al. 1998). They requested that we list the black-tailed prairie dog as threatened throughout its known historic range in the contiguous United States. We accepted this second request as supplemental information to the National Wildlife Federation petition. The Biodiversity Legal Foundation et al. (1998) provided estimates of historic and current distribution of the black-tailed prairie dog, both regionally and by State. They noted that the species' populations are impacted by eradication programs, sylvatic plague, recreational shooting, land conversion, and natural predation. The Biodiversity Legal Foundation (1999) also developed and submitted a potential plan for black-tailed prairie dog conservation.

The notice of a 90-day finding that a petition to list the black-tailed prairie dog presented substantial information that appeared in the Federal Register on March 25, 1999 (64 FR 14424). In this notice, we requested that any additional scientific information relevant to a proposed 12-month administrative finding be submitted to us by May 24, 1999. We published a notice in the Federal Register on June 4, 1999 (64 FR 29983), that reopened this period for an additional 45 days, through July 19, 1999. On October 4, 1999, we again published a notice that we would accept additional information, especially pertaining to a draft black-tailed prairie dog Conservation Assessment and Strategy (Strategy) developed by various States and its effect on the status of the species (64 FR 53655). This information collection period closed November 3, 1999.

We received approximately 14,500 comment letters during the development of this finding. The following summarizes the sources and general content of information we received.

All State wildlife agencies within the historic range of the black-tailed prairie dog provided written comments on the petition. Two State agriculture departments (New Mexico and Wyoming) and two State Legislatures (North Dakota and Wyoming) also provided comments. In general, the States opposed listing the black-tailed prairie dog but supported the development of conservation measures for the species. Most information provided by the States focused on policy and jurisdictional concerns rather than on information related to the biological status of the species.

State wildlife agencies and other interested parties also developed a Strategy for conservation of the black-tailed prairie dog (Van Pelt in prep.). The actions identified in the current draft of this Strategy remain tentative and do not at this time confer any improved status for the species. Eight of the 11 participating State wildlife agencies have signed a Memorandum of Understanding for the purpose of implementing the States' Strategy for the black-tailed prairie dog. At this time, the strategy does not include participation by the States of New Mexico, North Dakota, and Colorado, other State (non-wildlife) agencies, Federal agencies, Tribal agencies, or any private interests. We recognize the significant effort that went into the development of this strategy, and we believe that the strategy is a positive step in addressing the conservation needs of the black-tailed prairie dog. At this early stage in development of the strategy, the document lacks commitments to specific immediate actions that would affect the status of the species. We will continue working with the States and other interested parties to support the coordinated conservation efforts of the States.

Three Tribes in South Dakota provided written comments on the petition—the Cheyenne River Sioux Tribe, the Crow Creek Sioux Tribe, and the Rosebud Sioux Tribe. Information was provided by these Tribes regarding distribution and abundance and existing regulatory mechanisms on and adjoining their respective Tribal lands.

Several Federal agencies provided written comments on the petition. The Bureau of Indian Affairs (BIA) supported conservation measures and acknowledged a possible need to list the species. The U.S. Forest Service provided supplemental information regarding the current status of black-tailed prairie dogs on National Grasslands (Sidle, U.S. Forest Service, in litt. 1999). The National Park Service provided information on its control efforts and noted its preference for the development and implementation of cooperative management strategies among State, Tribal, and Federal agencies rather than a listing of the species. The Corps of Engineers Omaha District also reviewed information provided in the petition, but had no specific comments.

Twenty-three county agencies (county commissions and weed/pest councils) in Colorado, Montana, Nebraska, South Dakota, and Wyoming provided written comments on the petition. All county agencies were opposed to listing the species. Economic considerations were a common concern in these comment letters. Because the Act directs that only biological considerations are to be addressed in the listing process, we cannot address economic considerations in review of this petition.

One hundred forty-four organizations (wildlife/conservation or livestock/land management organizations) provided written comments on the petition. Forty-two wildlife/conservation organizations supported listing of the black-tailed prairie dogs. Eighty-seven livestock/land management organizations were opposed to listing the species. Fifteen organizations provided recommendations but did not indicate a position.

Over 14,300 individuals provided written comments on the petition. Approximately 90 percent of all individuals supported listing the black-tailed prairie dog as threatened. The issues most frequently noted in these letters were impacts from the loss of 99 percent of the species' habitat, recreational shooting, control, and disease. Individuals opposed to listing the species most frequently expressed the view that adequate numbers of the species exist, the species is able to reproduce rapidly in response to adverse impacts, sport shooting does not impact the species, and adverse economic impacts can occur if the species is not controlled.

We received approximately 9,000 letters during the third comment period (October 4 to November 3, 1999). Of these, 84 mentioned the States' Strategy, 25 of which opposed the States' Strategy, mostly due to a perceived lack of specific conservation measures and reliance on future, voluntary actions. Fifty-six letters supported the States' Strategy, most expressing the view that the proposed measures were sufficient to avoid listing and that State management was preferable to Federal management. The remaining 3 of the 84 commenters did not express a position.

Five species of prairie dogs occur in North America. Prairie dogs are rodents within the squirrel family ( Sciuridae ) and include the black-tailed prairie dog, the white-tailed prairie dog ( Cynomys leucurus ), the Gunnison's prairie dog ( C. gunnisoni ), the Utah prairie dog ( C. parvidens ), and the Mexican prairie dog ( C. mexicanus ) (Pizzimenti 1975). The Utah and Mexican prairie dogs are currently listed as threatened (49 FR 22339) and endangered (35 FR 8495), respectively. Generally the black-tailed prairie dog occurs east and north of the other four species in less arid habitat.

Some scientific literature describes a subspecies ( Cynomys ludovicianus arizonensis ) of the black-tailed prairie dog. This subspecies, found in northeastern Mexico (Ceballos et al. 1993), is extirpated in Arizona (Alexander 1932; Bureau of Sport Fisheries and Wildlife 1961; Van Pelt, Arizona Game and Fish Department, in litt. 1998) and has a remnant population in southwestern New Mexico (Hall and Kelson 1959) and in the Trans-Pecos region of Texas (Davis 1974, Hall and Kelson 1959). A complex of this subspecies in Chihuahua, Mexico, comprises the largest remaining prairie dog complex of any prairie dog species (Ceballos and Pacheco 1997).

The remainder of the species is found in eastern Montana, eastern Wyoming, eastern Colorado, eastern New Mexico, southwestern North Dakota, western and central South Dakota, western and central Nebraska, western and central Kansas, western and central Oklahoma, northwestern Texas, and southwestern Canada. Although some literature describes a subspecies, the research that has focused on evolutionary divergence (genetic segregation and differentiation within a taxon) supports categorizing the black-tailed prairie dog as a monotypic species. Based on this research we do not consider this subspecies separation to be valid. We consider the species as being monotypic. For the remainder of this notice, the use of the common name “black-tailed prairie dog” includes both varieties discussed above.

Prairie dogs are small, stout ground squirrels. The total length of an adult black-tailed prairie dog is approximately 14-17 inches. The weight of an individual ranges from 1 to 3 pounds. Individual appearances within the species vary in mixed colors of brown, black, gray, and white. The black-tipped tail is characteristic (Hoogland 1995). Black-tailed prairie dogs are diurnal, burrowing animals and spend most of the day above ground. They do not hibernate as do white-tailed, Gunnison's, and Utah prairie dogs (Hoogland 1995, Tileston and Lechleitner 1966). The species is very social, living in population aggregations called colonies, towns, or villages (King 1955). Groups of colonies comprise a complex. Historically, they generally occurred in large colonies that contained thousands of individuals, covered hundreds of thousands of acres, and extended for miles (Bailey 1905). This description is no longer accurate for existing black-tailed prairie dog populations; most colonies are now much smaller.

The colonial behavior of prairie dogs, especially the black-tailed prairie dog, is a significant characteristic of the species. Colonial behavior offers an effective defense mechanism by aiding in the detection of predators and deterring predators through mobbing behavior. It increases reproductive success through cooperative rearing of juveniles and aids parasite removal via shared grooming. However, it also has been noted that this behavior promotes the transmission of disease, which can significantly suppress populations (Olsen 1981, Hoogland 1995).

Several biological factors determine the reproductive potential of the black-tailed prairie dog. Females usually do not breed until their second year and live 3-4 years (Hoogland 1995, King 1955, Knowles and Knowles 1994). Females of the species produce a single litter, usually 4-5 pups, annually (Hoogland 1995, Knowles and Knowles 1994). Prairie dog dispersal is usually limited to approximately 3 miles (5 kilometers) or less, and individuals dispersing from home colonies generally move into an established colony rather than attempting to initiate a new colony (Garrett and Franklin 1988, Hoogland 1995). These limitations could restrict recruitment of animals into small and declining isolated populations and favor the reestablishment of individuals in nearby, recently abandoned colonies over the establishment of new, more distantly located colonies.

The extent to which the black-tailed prairie dog is affected by other species, particularly ungulates, is largely unknown. The black-footed ferret ( Mustela nigripes ), swift fox ( Vulpes velox ), mountain plover ( Charadrius montanus ), ferruginous hawk ( Buteo regalis ), burrowing owl ( Athene cunicularia ), and numerous other species are dependent upon prairie dogs to varying degrees. Although reports vary as to those species that require prairie dogs for their survival, at least 9 species depend directly on prairie dogs or their activities to some extent, and another 137 species are associated opportunistically (Kotliar et al. 1999). The most obligatory species of this group is the endangered black-footed ferret. Probably no other species has a more clearly documented dependence on another species than does the black-footed ferret on the prairie dog (Anderson et al. 1986, Biggins et al. 1986, Clark 1989, Forrest et al. 1988, Henderson et al. 1974, Hillman 1968, Miller et al. 1996).

The historic range of the black-tailed prairie dog included portions of 11 States, Canada, and Mexico. Today it occurs from extreme southern Canada to northeastern Mexico and from approximately the 100th meridian west to the Rocky Mountains. The species is currently present in 10 States including Colorado, Kansas, Montana, Nebraska, New Mexico, North Dakota, Oklahoma, South Dakota, Texas, and Wyoming. It has been extirpated in Arizona since as early as 1932 (Alexander 1932). We believe that significant range contractions have occurred in the southwestern portion of the species' historic range in Arizona, western New Mexico and western Texas, and in the eastern portion of the species' historic range in Kansas, Nebraska, Oklahoma, South Dakota, and Texas. These range contractions represent approximately 20 percent of the species' original range. Only a few individuals or none remain in these areas. Approximately 37 percent of the species' potential habitat in the United States has been converted to cropland (Black-footed Ferret Recovery Foundation, in litt. 1999). This habitat loss is essentially permanent and not considered a range contraction in the usual sense occurring at the periphery of a species' range. Although the species will occupy abandoned tilled ground, these lands are generally unavailable for use by the species because the land is continuously disturbed and thus the habitat is lost permanently.

Historically, black-tailed prairie dogs were one of the most conspicuous and characteristic residents of the short-grass and mixed-grass prairies of the United States. Seton (1953) estimated that, in the late 1800s, 5 billion black-tailed prairie dogs existed over their entire range of 600,000 square miles (384 million ac or 155.5 million ha). Miller et al. (1996) and Mulhern and Knowles (1995) provided a range for historic occupied habitat by all species of prairie dogs of 99 million-247 million ac (40 million-100 million ha). Anderson et al. (1986) noted that, as a conservative estimate for the early 1900s, 104 million ac (42 million ha) of rangeland may have been occupied by all species of prairie dogs. Black-tailed prairie dogs had the most extensive range of all the species of prairie dogs and probably occupied more area than all other species combined (Hoogland 1995). Estimates of historic black-tailed prairie dog occupied habitat of approximately 79 million ac (32 million ha) in the United States by the Black-footed Ferret Recovery Foundation ( in litt. 1999) and of approximately 111 million ac (45 million ha ) by Knowles (1998) provide a reasonable historic range for black-tailed prairie dog occupied habitat. It is apparent that regardless of which estimate is considered, tens of millions of acres of occupied habitat once existed in the United States.

At present, the black-tailed prairie dog may be found scattered in remnant populations throughout much of the range that it once occupied. A significant portion of existing occupied habitat rangewide occurs in a few large complexes. Approximately 36 percent of the remaining occupied habitat for the species in North America occurs in seven complexes, each larger than 10,000 ac (4,000 ha). We believe that approximately 768,000 ac (311,000 ha) of occupied habitat currently exists rangewide. This estimate is based on the sum of Service estimates from various States, from Canada, and from Mexico, as discussed under the “Statewide Distribution, Trends, and Abundance” section of this document.

Most estimates of prairie dog population trends are not based on numbers of individuals, but on the amount of occupied habitat for the species. The actual number of animals present depends upon the density of animals in that locality. Estimates of black-tailed prairie dog density across the species' range vary seasonally, but range from 2 to 18 individuals per ac (5 to 45 individuals per ha) (Fagerstone and Ramey 1996, Hoogland 1995, King 1955, Koford 1958, Miller 1996). Most prairie dog surveys do not estimate density because of the high effort and cost involved. We believe that a review of various estimates of occupied habitat area provides the best available and most reasonable means of determining population trends for the species.

The U.S. Geological Survey estimated that the black-tailed prairie dog may occupy less than 0.5 percent of its original range and has experienced an estimated 98 percent decline in population abundance throughout North America (Mac et al. 1998). It notes that the amount of occupied habitat has declined from approximately 100 million ac (40.5 million ha) in the late 1800s to less than 1 million ac (0.4 million ha) at present; a decline of over 99 percent. Barko (1997), Fagerstone and Ramey (1996), Knowles (1998), Mulhern and Knowles (1995), and Wuerthner (1997) concluded that a reduction of approximately 94-99 percent in the amount of occupied habitat within this range has occurred since about 1900. State wildlife agencies generally confirm this decline, but some point out that disproportionately more occupied habitat remains in some areas than in others.

Some increases in the amount of occupied habitat in some areas occurred subsequent to the Executive Order banning the use of compound 1080 (a toxicant) in 1972. These increases appear to have been limited in later years by the use of other toxicants such as zinc phosphide, the continuing spread of sylvatic plague, and other factors (Knowles 1998). Moreover, the majority of these increases (approximately 85 percent) occurred in areas (Montana, South Dakota, and Wyoming) where significant impacts due to disease had not yet occurred.

Survey efforts in some areas have noted significant declines in the amount of black-tailed prairie dog occupied habitat over the last few decades. For example, the U.S. Forest Service has mapped black-tailed prairie dog colonies within the Northern Great Plains National Grasslands in North Dakota, South Dakota, Wyoming, and Nebraska. These grasslands, covering approximately 3.7 million ac (1.5 million ha), included a maximum of 86,220 ac (34,890 ha) of black-tailed prairie dog occupied habitat in the 1970s to the 1990s. In 1997, the U.S. Forest Service mapped 39,420 ac (15,965 ha) of occupied habitat in the same areas, indicating a 54 percent decline (U.S. Forest Service 1998). Data provided by the U.S. Forest Service in 1999 confirmed losses in occupied habitat for the National Grasslands with a 58 percent decline from the 1970s to the present (Sidle, U.S. Forest Service, in litt. 1999).

Lockhart (U.S. Fish and Wildlife Service, in litt. 1998) reported that the recovery program for the black-footed ferret has identified large prairie dog complexes potentially useful for reintroduction of the ferret. Both black-tailed and other prairie dog species are considered. One necessary criteria for these sites is that they contain approximately 10,000 ac (4,000 ha) of occupied habitat. In the late 1980s, the Black-footed Ferret Interstate Coordinating Committee identified dozens of potential sites that may have qualified as suitable for ferret recovery. Black-tailed prairie dog populations at these sites appear to have been reduced by as much as 90 percent within the last 15 years. By 1994 only 16 sites were identified, and by 1998 this number was reduced to 10 sites (7 being black-tailed prairie dog sites). Although the overall trend is a large-scale reduction, population increases have been observed at some locales. These declines have occurred largely in the western portion of the species' range and are generally attributed to sylvatic plague. These declines may be representative of the overall population dynamics of the species in many areas. However, populations in some other areas in the eastern portion of the species' range where plague is mostly absent have increased marginally or remained generally constant during the same period.

Approximately 66 percent, or 300 million ac (122 million ha), of the black-tailed prairie dog range in the United States is affected by sylvatic plague (Black-footed Ferret Recovery Foundation, in litt. 1999). This area includes the western portions of the species' range. Another important factor that has affected the species is the conversion of rangeland to cropland, especially in the eastern portion of the species' range. Conversion of native prairie to cropland has largely progressed across the species' range from east to west with more cropland occurring in the eastern portion of the species' range. In the plague-free portion of the species' range, less than 33 percent of the species' historic range is available to the species (Black-footed Ferret Recovery Foundation, in litt. 1999). Therefore, only approximately 10 percent of the black-tailed prairie dog historic range is both plague-free and available (not cropland) to the species. The majority of plague-free, suitable range occurs in South Dakota.

In some parts of the species' range, statewide population increases were noted after 1972. However, in most western States, populations have declined since the 1980s, most likely due to sylvatic plague. In the eastern part of the range, where plague has not yet occurred, similar declines have not been observed. These trends are discussed below by State. We have evaluated all historic and current data and information available on the species' abundance and trends. Several estimates of black-tailed prairie dog occupied habitat were available for each State. The dates, methodologies, and ultimately the reliability of these estimates varied. Generally, our estimate of current occupied habitat for each State is the most recently reported estimate with the most reliable methodology (Arizona, Montana, Nebraska, North Dakota, Oklahoma, South Dakota, Canada, and Mexico). For States where a range (Wyoming) or two reliable estimates were available (Kansas), we used the midpoint. For States where no recent estimate with adequate methodology was available (Colorado, New Mexico, and Texas), we extrapolated from older estimates. We rounded all our estimates to the nearest 1,000 ac.

In Arizona, black-tailed prairie dogs existed in the southeastern portion of the State prior to eradication efforts (Hall and Kelson 1959). The species is extirpated at present in the State. Approximately 2 percent of occupied habitat in the United States may have existed in Arizona historically. We believe that intensive grazing at the turn of the last century may have caused occupied habitat to expand in Arizona and that control may have been the principal factor that subsequently suppressed populations. Shrub invasion also may have limited recovery. The species largely disappeared from the State prior to the documented occurrence of sylvatic plague in the State (Shroufe, Arizona Game and Fish Department, in litt. 1999). However, plague is an additional factor that could affect the future viability of the species in Arizona.

In Colorado, black-tailed prairie dogs historically occurred on suitable habitat east of the Rocky Mountain foothills (Hall and Kelson 1959, Torres 1973). Presently, the species appears to be scattered in remnant populations throughout the same area. Statewide estimates of occupied habitat noted for Colorado range from 7 million ac (2.8 million ha) historically to 44,000 ac (18,000 ha) in 1998 (Knowles 1998).

We believe that occupied habitat in Colorado has declined significantly from historic estimates. There is a large disparity in recent statewide estimates of remnant occupied habitat. However, we believe that trends at specific locations within the State (a 50 percent decline in Denver Metropolitan Area from 1994 to 1998 (Seery, U.S. Fish and Wildlife Service, pers. comm. 1998), a 70 percent decline at Rocky Mountain Arsenal National Wildlife Refuge from 1988-1999 (Seery and Matiatos, in press), and a 90 percent decline at Comanche National Grasslands from 1995 to 1998 (Cully 1998), indicate that there has likely been a statewide decline in recent years (despite periodic limited recovery) and that these declines may continue. These declines have largely been attributed to sylvatic plague. We estimate that 93,000 ac (43,000 ha) of black-tailed prairie dog occupied habitat currently exist statewide.

In Kansas, black-tailed prairie dogs historically occurred on suitable habitat throughout the western two-thirds of the State (Hall and Kelson 1959, Smith 1958). Presently, the species appears to be scattered throughout generally the same area, except that the eastern limit of the range appears to have shifted westward approximately 30-50 miles (50-80 kilometers) (Vanderhoof and Robel 1992). Statewide estimates of occupied habitat for Kansas range from 2.5 million ac (1 million ha) historically to 36,000 ac (15,000 ha) in 1998 (Knowles 1998). We estimate that 42,000 ac (17,000 ha) of black-tailed prairie dog occupied habitat currently exist statewide.

We believe that occupied habitat in Kansas has declined significantly from historic estimates, but has likely been stable to slightly declining in recent years. The most recent statewide survey is from 1992 (Vanderhoof and Robel 1992). However, in 1996 sylvatic plague was documented in Kansas on the Cimarron National Grasslands (Cully, U.S. Geological Survey, Biological Resources Division, pers. comm. 1998). Therefore, occupied habitat may decline if sylvatic plague impacts continue and/or spread to other areas of the State.

In Montana, black-tailed prairie dogs historically occurred on suitable habitat in the eastern two-thirds of the State (Flath and Clark 1986), with the exception of the northeastern corner of the State (Hall and Kelson 1959). One of the seven large remaining black-tailed prairie dog complexes occurs in Montana. Statewide estimates of occupied habitat for Montana range from 6 million ac (2.4 million ha) historically (Knowles 1998) to 28,286 ac (11,456 ha) in 1961 (Bureau of Sport Fisheries and Wildlife 1961). The Montana Department of Fish, Wildlife, and Parks believes that historic estimates are inaccurate (Graham, Montana Department of Fish, Wildlife, and Parks, in litt. 1998). The most recent estimate of occupied habitat is 66,000 ac (26,000 ha) (Montana Department of Fish, Wildlife and Parks in prep.). We estimate that 65,000 ac (26,000 ha) of black-tailed prairie dog occupied habitat currently exist statewide.

We believe that occupied habitat in Montana has declined significantly from historic estimates. Following a major reduction in occupied habitat from approximately 1900 to 1961, black-tailed prairie dog populations in the State apparently expanded from 1961 to 1986 and then experienced significant declines due to sylvatic plague. The Montana Department of Fish, Wildlife, and Parks (1998) noted that occupied habitat declined by approximately 50 percent from the estimates of the late 1980s, largely due to sylvatic plague.

In Nebraska, black-tailed prairie dogs historically occurred on suitable habitat throughout most of the State west of the 97th meridian (Hall and Kelson 1959, Knowles 1995). Presently, the species appears to be scattered throughout the same area, but at much reduced numbers, especially east of the 99th meridian. Statewide estimates of occupied habitat noted for Nebraska range from 6 million ac (2.4 million ha) historically (Knowles 1998) to 30,000 ac (12,000 ha) in 1961 (Bureau of Sport Fisheries and Wildlife 1961). The most recent estimate of occupied habitat is 60,000 ac (24,000 ha) (Knowles 1998). We estimate that 60,000 ac (24,000 ha) of black-tailed prairie dog occupied habitat currently exist statewide.

We believe that occupied habitat in Nebraska has declined significantly from historic estimates and has likely been stable to slightly declining in recent years (Amack, Nebraska Game and Parks Commission, in litt. 1999). This stability may be due to the fact that sylvatic plague does not appear to be widespread in the State, although it has been documented in the northwestern portion of the State where it has impacted some black-tailed prairie dog populations (Virchow et al. 1992).

In New Mexico, black-tailed prairie dogs historically occurred on suitable habitat throughout the southern and eastern two-thirds of the State (Bailey 1932, Hall and Kelson 1959). Presently, the species appears to exist in remnant populations in scattered locations, generally east of the Pecos River (Findley et al. 1975). Statewide estimates of occupied habitat noted for New Mexico range from over 6,640,000 ac (2,690,000 ha) historically (Bailey 1932) to 15,000 ac (6,000 ha) in 1998 (Knowles 1998). We estimate that 39,000 ac (16,000 ha) of black-tailed prairie dog occupied habitat currently exist statewide.

We believe that occupied habitat in New Mexico has declined significantly from historic estimates. Following the toxicant ban in 1972, increases in occupied habitat appear to have occurred. However, declines in occupied habitat have likely occurred in more recent years (Maracchini, New Mexico Department of Game and Fish, in litt. 1998).

In North Dakota, black-tailed prairie dogs historically occurred on suitable habitat in the southwestern third of the State, west of the Missouri River (Hall and Kelson 1959). Presently, the species appears to be scattered throughout the same area. Statewide estimates of occupied habitat for North Dakota range from 2 million ac (810,000 ha) historically (Knowles 1998) to approximately 7,000 ac (2,800 ha) as a conservative estimate in 1973 (Grondahl 1973). The most recent estimate of occupied habitat is a preliminary estimate of approximately 25,000 ac (10,000 ha), based on aerial surveys (Sidle, U.S. Forest Service, pers. comm. 1999). We estimate that 25,000 ac (10,000 ha) of black-tailed prairie dog occupied habitat currently exist Statewide.

We believe that occupied habitat in North Dakota has declined significantly from historic estimates, but has likely been fairly stable to increasing (McKenna, North Dakota Game and Fish Department, in litt. 1999) in recent years. The amount of occupied habitat in North Dakota is relatively small compared to other States in the northern Great Plains.

In Oklahoma, black-tailed prairie dogs historically occurred on suitable habitat in the western two-thirds of the State (Hall and Kelson 1959). Presently, the species is largely limited to the panhandle (Shaw et al. 1993, Tyler 1968, Wuerthner 1997), although scattered remnant populations occur in the western half of the State outside of the panhandle (Shackford et al. 1990). Statewide estimates of occupied habitat noted for Oklahoma range from 950,000 ac (385,000 ha) historically (Knowles 1998) to less than 8,600 ac (3,500 ha) in 1998 (Lomolino, University of Oklahoma, in litt. 1999). We estimate that 9,000 ac (3,600 ha) of black-tailed prairie dog occupied habitat currently exist Statewide.

Populations in the panhandle have experienced significant declines in the past 10 years, although with limited recovery (Lomolino, University of Oklahoma, in litt. 1999). These declines were likely due to plague. The amount of occupied habitat in the remainder of the State has experienced a slow, steady decline (Shackford et al. 1990). Statewide, populations have been reduced by 50 percent in the last 10 years (Lomolino, in litt. 1999).

In South Dakota, black-tailed prairie dogs historically were found throughout all but the eastern one-fourth of the State (Hall and Kelson 1959, Linder et al. 1972). Presently the species appears to be scattered throughout the same area, with the majority of occupied habitat on Tribal or Federal lands west of the Missouri River and small scattered populations elsewhere. Four of the seven remaining large black-tailed prairie dog complexes occur in South Dakota. Statewide estimates of occupied habitat for South Dakota range from more than 1,757,000 ac (712,000 ha) historically, following the initiation of intensive control efforts in 1918 (Linder et al. 1972), to 33,000 ac (13,000 ha) in 1961 (Bureau of Sport Fisheries and Wildlife 1961). The most recent estimate of occupied habitat in the State is a preliminary estimate of 147,000 ac (60,000 ha), based on aerial surveys (Sidle, U.S. Forest Service, pers. comm. 1999). We estimate that 147,000 ac (60,000 ha) of black-tailed prairie dog occupied habitat currently exist Statewide.

We believe that occupied habitat in South Dakota has declined significantly from historic estimates, with notable recovery from 1961-1980 (Bureau of Sport Fisheries and Wildlife 1961, Tschetter 1988). Thereafter, extensive control efforts at Pine Ridge Reservation and elsewhere in the 1980s resulted in a significant decline in occupied habitat. Subsequently, occupied habitat has remained fairly stable. More unoccupied, but available, habitat appears to remain in South Dakota than in other States.

In Texas, black-tailed prairie dogs historically occurred on suitable habitat throughout the northwestern one-third of the State (Bailey 1905, Hall and Kelson 1959). Presently, the species occurs largely in the western portion of the panhandle. Some scattered remnant populations exist in the Trans-Pecos Region of western Texas. Statewide estimates of occupied habitat range from 58 million ac (23 million ha) historically to 23,000 ac (9,000 ha ) in 1998 (Knowles 1998). We estimate that 71,000 ac (29,000 ha) of black-tailed prairie dog occupied habitat currently exist Statewide.

We believe that occupied habitat in Texas has declined significantly from historic estimates. However, based upon the limited amount of information available, we believe that occupied habitat increased following the toxicant ban in 1972 and that populations may have remained fairly stable since the late 1970s (Cheatheam 1977, Lair and Mecham 1991).

In Wyoming, black-tailed prairie dogs historically occurred on suitable habitat east of the Rocky Mountain foothills (Clark 1973, Hall and Kelson 1959) below approximately 5,500 feet (1,676 meters) elevation (Van Pelt in prep.). Presently, the species appears to be scattered throughout the same area. One of the seven remaining large black-tailed prairie dog complexes occurs in Wyoming. Statewide estimates of occupied habitat for Wyoming range from 16 million ac (6.5 million ha) historically (Knowles 1998) to 49,000 ac (20,000 ha) in 1961 (Bureau of Sport Fisheries and Wildlife 1961). The most recent estimate is 70,000-180,000 ac (28,000-73,000 ha) in 1998 (Knowles 1998). We estimate that 125,000 ac (51,000 ha) of black-tailed prairie dog occupied habitat currently exist Statewide.

We believe that occupied habitat in Wyoming has declined significantly from historic estimates. Increases in occupied habitat occurred following the toxicant ban in 1972. However, we believe that recent declines, largely due to impacts from sylvatic plague, are likely to continue.

Historically, black-tailed prairie dogs occurred on suitable habitat in southernmost Saskatchewan (Hall and Kelson 1959). Presently the species is found in a small area along the Frenchman River Valley. Many of these colonies are in Canada's Grasslands National Park (Laing 1986). Canada represents a very small percentage (approximately 0.3 percent) of the rangewide population. Estimates of occupied habitat in Canada range from 1,244 ac (503 ha) in 1970 (Millson 1976) to 2,318 ac (938 ha) in 1996 (Fargey, Grasslands National Park, pers. comm. 1998). We estimate that 2,000 ac (800 ha) of black-tailed prairie dog occupied habitat currently exists in Canada.

We believe that occupied habitat in Canada has remained at approximately 2,000 ac (800 ha) and, in the absence of sylvatic plague, will likely remain stable.

Historically, black-tailed prairie dogs occurred on suitable habitat throughout the northern portion of the Mexican States of Chihuahua and Sonora (Hall and Kelson 1959). Presently, most individuals appear to be limited to a small region in northern Chihuahua. The largest remaining black-tailed prairie dog complex occurs in Mexico. Estimates of occupied habitat in Mexico range from 1,384,000 ac (560,000 ha) historically (Mearns 1907 as cited in Ceballos et al. 1993) to 90,000 ac (36,000 ha) in 1996 (List et al. 1997). We believe that the List et al. (1997) estimate of 90,000 ac (36,000 ha) of currently existing black-tailed prairie dog occupied habitat in Mexico is accurate.

We believe that occupied habitat in Mexico has declined significantly from historic estimates and that this decline continues. Decline appears to be due primarily to cropland conversion. From 1988 to 1996, the geographic range of the species in Mexico contracted 80 percent and the amount of occupied habitat decreased by 34 percent (List et al. 1997). Colony fragmentation has occurred in previously surveyed black-tailed prairie dog colonies, reducing the size of towns and increasing their isolation.

Section 4 of the Act and regulations (50 CFR part 424) promulgated to implement the listing provisions of the Act set forth the procedures for adding species to the Federal lists. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1). These factors and their application to the black-tailed prairie dog are as follows:

We believe that habitat loss due to cropland conversion, urbanization, habitat modification, and fragmentation is a factor adversely affecting black-tailed prairie dog populations rangewide.

In the United States, approximately 37 percent of the suitable habitat within the range of the black-tailed prairie dog has been converted to cropland (Black-footed Ferret Recovery Foundation, in litt . 1999). This land use change resulted in significant destruction of black-tailed prairie dog habitat, particularly in eastern portions of the species' range where adequate precipitation favors farming. Cropland conversion continues, but the amount of occupied habitat converted annually is unknown. In some areas cropland conversion occurs due to continuing improvements in intensive agricultural techniques, for example, dryland wheat farming in Montana (Knowles et al . 1996, Lessica 1995) and irrigated croplands in Mexico (List et al . 1997). List et al . (1997) reported that occupied habitat in Mexico declined by 34 percent between 1988 and 1996, in part due to conversion to cropland.

Habitat loss also has occurred due to urbanization. One example of the present and threatened destruction of black-tailed prairie dog occupied habitat due to urban development is apparent along the Front Range of Colorado near Denver. In 1994, 42,500 ac (17,200 ha) of occupied habitat were mapped in the Denver/Boulder/Fort Collins metropolitan area (Skiba, Colorado Division of Wildlife, pers. comm. 1999). Knowles (1998) estimated that occupied habitat has declined by approximately 8,000 ac (3,200 ha) since the initial mapping effort, due to urbanization. An evaluation of the specific impact of urbanization is difficult because sylvatic plague also has significantly affected populations in this area in recent years (Weber, Colorado Division of Wildlife, pers. comm. 1998).

Habitat modification and loss due to the absence of black-tailed prairie dogs can be anticipated in the prairie ecosystem where populations have been extirpated or significantly reduced in number. Weltzin et al . (1997) determined that black-tailed prairie dogs, and the herbivores and granivores associated with their colonies, probably maintained grassland and savanna historically by preventing woody species such as mesquite from establishing or attaining dominance. List et al . (1997) reported that control of black-tailed prairie dogs in Mexico resulted in the invasion of mesquite shrubs that rendered the landscape unsuitable for reoccupation by the species. Davis (1974) also noted that the removal of the species from some sites in Texas resulted in the invasion of brush. The fragmented nature of remaining prairie dog colonies, barriers to immigration and emigration, and the lack of fire and native ungulate herds that historically denuded the landscape and provided opportunities for prairie dog colonies to expand (Miller et al . 1994) accentuate habitat loss due to vegetative succession. The degree to which this type of grassland change and other landscape alterations affect black-tailed prairie dog populations across their range is unknown. Nevertheless, these subtle habitat changes may be a major factor in precluding the utilization of habitat or recolonization of former habitat by the species.

North American grasslands have suffered among the most extensive fragmentation and transformation of any biome on the continent (Groombridge 1992). More fragmented, more isolated, and less connected populations usually have higher extinction rates (Clark 1989, Gilpin and Soule 1986, MacArthur and Wilson 1967, Shaffer 1981, Wilcove et al . 1986, Wilcox and Murphy 1985). List et al . (1997) suggested that fragmented black-tailed prairie dog colonies in Mexico were prone to extirpation. Miller et al . (1996) described existing prairie dog populations as small, disjunct, and geographically isolated. Dispersal has been limited by barriers created by human development that preclude immigration or emigration. Fragmentation and extirpation of small, isolated colonies will result in the loss of additional genotypes, as occurred with the complete extirpation of the species in portions of the eastern and southwestern areas of its historic range. Lost genetic diversity will inherently be detrimental to the long-term survival of the species.

We believe that overutilization of the black-tailed prairie dog via the pet trade is not a significant factor affecting black-tailed prairie dog populations rangewide. Herron (Texas Parks and Wildlife Department, pers. comm. 1999) and others have reported that black-tailed prairie dogs are removed from the wild for sale as pets. Herron was aware of 3 commercial operators who collectively removed approximately 5,000 individuals from the Texas panhandle and other States annually in recent years. Miscellaneous reports indicate that this practice occurs elsewhere in the species' range, but the extent of removal of individuals from the wild for use as pets is unknown.

Recreational (sport or varmint) shooting is impacting black-tailed prairie dog populations in some local areas. At present, we do not believe that this factor is responsible for significant rangewide declines in the species' population; however, it may be important locally. The popularity of shooting has increased appreciably in recent years. Many States do not require hunting licenses and have no bag limits or seasonal restrictions for taking prairie dogs. Some areas administered by the Bureau of Land Management and the U. S. Forest Service have been closed to recreational shooting over the past two years, but recreational shooting is still allowed on other areas administered by these agencies. Recreational shooting is not allowed on on lands administered by the National Park Service or the Fish and Wildlife Service. Knowles (1988) reported that shooting on two black-tailed prairie dog colonies removed 69 percent of the adults. He thought that the reduction of prairie dog populations below a certain threshold number might have a further negative consequence because fewer prairie dogs were available to watch for predators and keep the vegetation clipped around burrows to improve detection of predators. Vosburgh (1996) reported that intensive shooting can have a statistically significant impact on the density of local black-tailed prairie dog colonies. He observed that during the summer, species density declined 33 percent on colonies with shooting and 15 percent on colonies without shooting. Prairie dogs also spent more time in alert postures and less time foraging on colonies where shooting occurred.

Large, healthy populations appear to be able to withstand considerable removal by shooting and remain viable (Bourland and Dupris, Cheyenne River Sioux Tribe, in litt . 1998; Finnegan et al ., Rosebud Sioux Tribe, in litt . 1998). Accordingly, the shooting of hundreds of thousands of individuals across the extensive range of the black-tailed prairie dog where millions of individuals occur will not likely adversely impact the overall population of a species where each female can produce an average of four young annually. Conversely, small local populations already depressed by disease and other adverse influences may suffer additive losses from shooting impacts. Shooting impacts also may contribute to population fragmentation and preclude or delay recovery of colonies reduced by other factors, such as sylvatic plague.

We believe that sylvatic plague is likely the most important factor in recent reductions of many black-tailed prairie dog populations throughout a significant portion of the range of the species. Approximately 66 percent of the species' range has been affected by plague (Black-footed Ferret Recovery Foundation, in litt . 1999). Plague is an exotic disease foreign to the evolutionary history of North American species (Gage, Center for Disease Control, pers. comm. 1999). Plague was first observed in wild rodents in North America near San Francisco, California, in 1908 (Eskey and Haas 1940). It spread eastward across the continent in subsequent years and still appears to be expanding its range, although not as rapidly as in its early years. The first reported incidences of plague in black-tailed prairie dogs occurred in the 1940s (Gage, Center for Disease Control, pers. comm. 1999, Miles et al . 1952). Black-tailed prairie dogs show neither effective antibodies nor immunity to the disease. This disease is caused by the bacterium Yersinia pestis , which fleas acquire from biting infected rodents and other species and then transmit via a bite. Plague also can be transmitted directly between animals. Cully (1989) summarized plague reports in 76 species of 5 mammalian orders in the United States, although plague is primarily a rodent disease. It can seriously affect humans, although it responds well to modern treatment (Center for Disease Control 1997). Rodent species vary in their susceptibility to plague, with some species acting as hosts or carriers of the disease or infected fleas and showing little or no symptoms. Black-tailed and Gunnison's prairie dog populations demonstrate nearly 100 percent mortality when exposed to plague (Barnes 1993, Cully 1993) and cannot be considered carriers.

Plague, once established in an area, becomes persistent and periodically erupts, with the potential to extirpate local black-tailed prairie dog populations. After several epizootics (an eruption of the disease that attacks a large number of animals at the same time), black-tailed prairie dogs at the Rocky Mountain Arsenal National Wildlife Refuge have neared extirpation (Seery, U.S. Fish and Wildlife Service, pers. comm. 1998). This phenomenon may be occurring at other formerly large black-tailed prairie dog complexes across much of the western portion of the species' range. At Northern Cheyenne Reservation in southeastern Montana, a plague epizootic started in 1991 and continued through 1996 (Young 1997), removing 97 percent of the black-tailed prairie dog population (Fourstar, Bureau of Indian Affairs, pers. comm. 1998). The population has begun to recover and has increased from a low of 378 ac (153 ha) of occupied habitat to 963 ac (390 ha). However, Young (University of Arizona, pers. comm. 1998) does not believe that this complex will recover to its former status. The effects of plague on prairie dogs may be exacerbated in smaller, isolated colonies where populations are not buffered by large numbers (where some individuals may escape infection by chance) and where recovery may be hampered by limited immigration from other colonies.

We believe that predation is not likely a major factor affecting overall black-tailed prairie dog populations, but it may be important locally or contribute to the effects of other factors. Little information is available to quantify the impact of predators on prairie dog populations.

We believe that inadequate regulatory mechanisms are a contributing factor affecting overall black-tailed prairie dog populations. Many States, Tribes, and Federal agencies recognize the historic decline and ecological significance of the black-tailed prairie dog, but few use available regulatory mechanisms to conserve the species. At least one government entity in most States promotes their reduction. However, some limited regulatory mechanisms exist for conservation of the species.

In Arizona, the Game and Fish Department classifies all prairie dogs native to the State as nongame mammals. Although the species has been extirpated in Arizona, a hunting season was open until 1999, when it was closed (Shroufe, Arizona Game and Fish Department, in litt. 1999). Arizona does not require the eradication of prairie dogs for agricultural purposes or promote recreational shooting of prairie dogs (Shroufe, Arizona Game and Fish Department, in litt. 1998). The black-tailed prairie dog is listed as endangered on the Arizona Game and Fish Department “Threatened Native Wildlife” list (Arizona Game and Fish Department 1988).

In Colorado, the Division of Wildlife requires a resident or nonresident hunting license for prairie dog shooting unless the animals are on land owned by the shooter. The season is year-round, with no bag or possession limit. However, for hunt contests, no participant may take more than five prairie dogs during the contest. In 1999, the Colorado State Legislature passed a bill prohibiting the translocation of prairie dogs and other species into a county without the consent of the county's commissioners (Van Pelt in prep.).

The State of Kansas considers black-tailed prairie dogs as agricultural pests and mandates control if an adjoining landowner files a complaint (Knowles 1995). In recent years, some counties have invoked “Home Rule” to take over authority for prairie dog control from the townships and impose mandatory control requirements on landowners. The landowner is given the opportunity to control prairie dogs on his land and if he fails to do so it is done by the county at the landowner's expense (Van Pelt in prep.). Shooting of prairie dogs in Kansas is somewhat restricted since a resident or nonresident hunting license is required and established methods of take are listed (Williams, Kansas Department of Wildlife and Parks, in litt. 1998).

In Montana, the Department of Fish, Wildlife, and Parks requires no license to shoot prairie dogs, and no limits on take or season exist. Prairie dogs are protected on two State parks as important features of those parks (Graham, Montana Department of Fish, Wildlife and Parks, in litt. 1998). The Department of Fish, Wildlife, and Parks identifies the black-tailed prairie dog as a State “species of special concern” (Flath 1998). The Department of Fish, Wildlife, and Parks is developing a species conservation plan for black- and white-tailed prairie dogs in Montana (Montana Department of Fish, Wildlife and Parks in prep.). However, the Montana Department of Agriculture classifies prairie dogs as “rodents” and “vertebrate pests.” The Montana Department of Agriculture assists landowners in control of prairie dogs if requested, but such assistance is not mandated (Sullins, Montana Department of Agriculture, pers. comm. 1999).

In Nebraska, the Game and Parks Commission currently considers the black-tailed prairie dog an unprotected nongame species that can be taken in any manner, without restrictions on shooting or control activities. Permits are not required for residents; nonresidents must have a small-game hunting permit. The Game and Parks Commission recognizes prairie dog shooting as an acceptable recreational activity, but suggests that shooting be avoided when prairie dogs have dependent young and that shooters take responsible measures to avoid disturbance of other wildlife species that use prairie dog colonies (Amack, Nebraska Game and Parks Commission, in litt. 1998).

In New Mexico, the Department of Game and Fish requires a license to shoot prairie dogs, but there are no bag limits or restrictions (Knowles 1998). The Petitioner reports that New Mexico considers the prairie dog as a “rodent pest” and mandates that landowners destroy prairie dogs on notice (National Wildlife Federation 1998).

In North Dakota, the Game and Fish Department classifies the black-tailed prairie dog as a nongame wildlife species. A resident is not required to purchase a hunting license to shoot prairie dogs; however, nonresidents are required to purchase one. The State sets no bag limits or seasons for prairie dogs. The North Dakota Game and Fish Department has published a guidebook to aid prairie dog shooters in finding colonies (North Dakota Game and Fish Department undated). The State of North Dakota considers the black-tailed prairie dog a pest, although the Game and Fish Department considers it a nongame species. The North Dakota Department of Agriculture and the county weed boards have regulatory authority over control efforts (Van Pelt in prep.).

In Oklahoma, the Department of Wildlife Conservation classifies the black-tailed prairie dog as a Category II Mammal Species of Special Concern. Prairie dog eradication is no longer mandatory in Oklahoma but is assisted by some State agencies and local governments. Control and recreational shooting of the species can occur on private land, but the Department of Wildlife Conservation does not promote either activity (Duffy, Oklahoma Department of Wildlife Conservation, in litt. 1998). A license for recreational shooting is required by residents and nonresidents. The Department of Wildlife Conservation requires that a permit be obtained prior to any control. Prairie dogs cannot be reduced in any county to fewer than 1,000 individuals, and control is not permitted on public lands (Van Pelt in prep.).

In South Dakota, the Department of Game, Fish, and Parks classifies the black-tailed prairie dog as a predator/varmint and requires that a resident or nonresident acquire a license to shoot prairie dogs. No seasons or bag limits have been established. The South Dakota Weed and Pest Control Statute designates the species as a statewide declared pest. Therefore, the existence of prairie dogs constitutes an infestation, giving the State authority to enter private land and exterminate the animals. If a county declares an infestation, landowners are responsible for the costs to control prairie dogs on their land whether they want control or not (Van Pelt in prep.).

In Texas, the Parks and Wildlife Department designates black-tailed prairie dogs as a nongame species and is prohibited by State statute from listing them as a State endangered species. A license is required to hunt prairie dogs, but no season or bag limits have been established. In 1999, the State established a regulation that requires a nongame collection or dealer's permit to possess more than 10 live prairie dogs or to sell prairie dogs (Van Pelt in prep.). This law does not regulate the killing of prairie dogs for recreational, agricultural, or nuisance purposes (Sansom, Texas Parks and Wildlife Department, in litt. 1998). The Texas Health and Safety Code authorizes counties to control prairie dogs and gives the Texas Department of Agriculture responsibility for providing information regarding control to requesting counties (Van Pelt in prep.).

The Wyoming Game and Fish Department regards the black-tailed prairie dog as a nongame wildlife species and has listed it as a Species of Special Concern. No license is required to hunt prairie dogs, and no seasons, bag limits, or restrictions on method of take have been established (Van Pelt in prep.). The Game and Fish Department supports development of seasons and bag limits for the black-tailed prairie dog (Wichers, Wyoming Game and Fish Department, in litt. 1998). The Wyoming Department of Agriculture lists the species as a pest. The Wyoming Weed and Pest Control Act of 1973 authorizes counties to enter private property to control prairie dogs if damage has been documented to neighboring landowners (Knowles 1995).

Mulhern and Knowles (1995) estimated that 30 percent of black-tailed prairie dog colonies occur on Tribal lands. Four of the seven remaining large complexes (those with 10,000 acres or more) (Cheyenne River, Fort Belknap, Pine Ridge, and Rosebud) occur on Tribal lands. Two Tribes (Cheyenne River Sioux Tribe in South Dakota and Fort Belknap in Montana) have prairie dog management plans in place (Knowles 1995). No extensive control of prairie dogs has occurred on Cheyenne River Sioux Tribe, Fort Belknap, or Rosebud Sioux Tribe (in South Dakota) in recent years due to concerns related to the conservation of black-footed ferrets. However, active recreational shooting programs on these and other Tribal lands exist. The Cheyenne River Sioux Tribe does not classify the prairie dog as a pest and does not require or encourage their eradication; however, shooting of black-tailed prairie dogs occurs year-round and without limits (Bourland and Dupris, Cheyenne River Sioux Tribe, in litt. 1998). Recreational shooting is also allowed on the Crow Creek Sioux Tribe in South Dakota, but chemical control is not allowed. The Tribe states that shooting appears to have no effect on black-tailed prairie dog numbers, and they report the species as abundant (Miller, Crow Creek Sioux Tribe, in litt. 1998). In 1998, the Rosebud Sioux Tribe Department of Natural Resources implemented a new licensing system for black-tailed prairie dogs in an attempt to reduce the number of shooters. License sales were reduced by approximately 50 percent from approximately 4,000 licenses in 1997 to 2,000 licenses in 1998 (Finnegan, Rosebud Sioux Tribe, pers. comm. 1999).

The BIA has a trust responsibility to oversee management of Tribal lands. The BIA's involvement in prairie dog control efforts has been principally through management of funding for prairie dog control programs on Tribal lands. In the northern Great Plains, from 1978-1992, BIA funding was responsible for the control of more prairie dog habitat than any other Federal agency in the country (Roemer and Forrest 1996).

The Bureau of Land Management (BLM) manages prairie dogs to meet multiple-use resource objectives including production of livestock forage and preventing prairie dog movement to adjacent State or private lands. Although BLM no longer actively conducts control, it still allows control to occur by other agencies on its lands and it still allows significant levels of unregulated sport shooting (Knowles 1995). In a memorandum dated June 23, 1999, and expiring September 30, 2000, the BLM instructed all of its State Directors within the range of the black-tailed prairie dog to “ensure that all actions authorized, funded or carried out by their respective field offices do not contribute to the need to list this species” (Colby, Bureau of Land Management, in litt. 1999). The BLM also anticipates implementing a mandatory restriction on prairie dog hunting in portions of south Phillips County, Montana, due to the lack of success of current voluntary closures in the area (October 18, 1999; 64 FR 56213).

We manage over 500 National Wildlife Refuges and their satellites, but only about 15 refuges, satellites, or Waterfowl Production Areas have black-tailed prairie dogs. Only two refuges have any significant amount of occupied habitat. On the Charles M. Russell and UL Bend National Wildlife Refuges in Montana, we manage 5,150 ac (2,090 ha) of black-tailed prairie dog occupied habitat. We have treated burrows with insecticide in an attempt to reduce fleas and disease transmission, and we have moved prairie dogs to recolonize vacant or low-density towns (Matchett 1997). The Rocky Mountain Arsenal National Wildlife Refuge in Colorado is attempting to recover its populations subsequent to repeated plague epizootics (U.S. Fish and Wildlife Service 1998). Shooting of prairie dogs is currently prohibited on all National Wildlife Refuges and satellites. Limited control has occurred on a few wildlife refuges, primarily as a measure to prevent the spread of prairie dogs onto adjacent private lands. At this time, all control efforts regarding the species have been suspended on Service lands (Clark, U.S. Fish and Wildlife Service, in litt. 1999).

The U.S. Forest Service manages approximately 3.7 million ac (1.5 million ha) of National Grasslands, which support approximately 42,460 ac (17,200 ha) of black-tailed prairie dog occupied habitat, approximately 1.1 percent of the National Grasslands (Sidle, U.S. Forest Service, in litt . 1999). In response to a request from the National Wildlife Federation and the positive 90-day finding, the U.S. Forest Service issued a moratorium on control of black-tailed prairie dogs during the current status review period on all lands administered by the U.S. Forest Service. The U.S. Forest Service also noted their intention to manage for larger prairie dog populations via new planning efforts subject to completion and approval (Manning, U.S. Forest Service, in litt . 1999).

The National Park Service is involved with prairie dog control programs through integrated pest management guidelines. During 1982-1992, four National Parks in the northern Great Plains were involved in prairie dog control—Badlands National Park, South Dakota; Wind Cave National Park, South Dakota; Theodore Roosevelt National Park, North Dakota; and Devils Tower National Monument, Wyoming (Roemer and Forrest 1996). In a memorandum dated January 14, 1999, the National Park Service instructed Superintendents of National Parks within the Midwest Region where prairie dogs occur (Badlands, Fort Larned, Scotts Bluff, Theodore Roosevelt, and Wind Cave units) to suspend further treatment of prairie dog colonies (with few exceptions) until a final determination is made on their status (Schenk, National Park Service, in litt . 1999).

The U.S. Department of Agriculture's Animal and Plant Health Inspection Service-Wildlife Services influences prairie dog control programs through its grant-in-aid program to States, which provides technical assistance to other State, Tribal, and Federal agencies, and private landowners, and its distribution of prairie dog toxicants. Roemer (1997) reported that during 1990-1994, the Animal and Plant Health Inspection Service-Wildlife Services was involved in control of prairie dogs over 101,660 ac (41,140 ha). Additionally, they were involved in control programs in the early 1980s at the Pine Ridge Indian Reservation (Oglala Sioux Tribe), South Dakota. The Animal and Plant Health Inspection Service-Wildlife Services has directed and conducted research related to the efficiency of prairie dog and other rodent control.

The Environmental Protection Agency deals indirectly with prairie dog control through pesticide labeling programs including restrictions to protect wildlife. Presently, labeling does not restrict prairie dog control, but does address concerns for the endangered black-footed ferret.

In Canada, the black-tailed prairie dog is designated as vulnerable by the Committee on the Status of Endangered Wildlife in Canada. Control is prohibited, and only private landowners are permitted to shoot prairie dogs (Fargey, Grasslands National Park, pers. comm. 1998).

In Mexico, the black-tailed prairie dog is listed as threatened by the Lista de las Especies Amerzadas, the official threatened and endangered species list of the Mexican Government (SEMARNAP 1994). List et al . (1997) reported that in Mexico, laws exist to stop control, but are often not enforced, and extensive control occurs. There are no protected areas for the black-tailed prairie dog in Mexico (Ceballos et al. 1993).

We believe that control efforts have limited black-tailed prairie dog populations, especially large-scale, well-organized efforts conducted early in the century. These control programs were conducted in response to concerns regarding potential forage competition with domestic livestock. Current control efforts are limited compared to historic efforts, but still impact a significant portion of occupied habitat annually. A well-documented control effort has occurred over most of the range of the black-tailed prairie dog (Anderson et al . 1986, Bell 1921, Cain et al . 1972, Forrest and Proctor in prep., Hanson 1993, Hubbard and Schmitt 1983, Lantz 1903, Lewis and Hassien 1973, Linder et al. 1972, Merriam 1902, Roemer and Forrest 1996, Shriver 1965). Control efforts resulted in extirpation of the black-tailed prairie dog in Arizona (Alexander 1932). Similar control efforts in Texas resulted in the persistence of only remnant populations in areas where, historically, the largest known populations of the species occurred (Bureau of Sport Fisheries and Wildlife 1961, Cheatheam 1977, Cottam and Caroline 1965).

Prairie dog control occurred repeatedly in most areas, and figures cited for acreage controlled may include retreatment of the same areas in subsequent years. Therefore, annual estimates of lands treated do not always equate to total loss of habitat. However, control (usually in conjunction with other factors) has led to the complete loss of occupied habitat in many areas. Organized prairie dog control gained momentum from 1916 to 1920 when prairie dogs were controlled on tens of millions of acres of western rangeland (Bell 1921). Federal programs were responsible for much of this effort (Cain et al . 1972). From 1937 to 1968, 30,447,355 ac (12,331,178 ha) of prairie dog occupied habitat were controlled (Cain et al . 1972). In the 1960s, several States reached their lowest estimates of occupied habitat (Bureau of Sport Fisheries and Wildlife 1961). In 1972, Compound 1080, which was used extensively in prairie dog control efforts, was banned by Presidential Executive Order II 11643. Although prairie dog control continued via other toxicants, it was at a reduced rate.

The most extensive control efforts in recent years have been conducted in the Northern Great Plains (U.S. Forest Service 1998). Roemer and Forrest (1996) summarized recent Federal and State control efforts on approximately 1,045,524 ac (423,437 ha) in South Dakota, Montana, and Wyoming. From 1978 to 1992, an average of 69,701 ac (28,229 ha) were treated annually in these three States. These estimates did not include estimates for private control or control involving indirect State or Federal assistance. Forrest and Proctor (in prep.) estimated that in recent years control conducted at the local level probably affected “tens of thousands” of black-tailed prairie dog occupied habitat on an annual basis. The BIA administered the last large-scale control effort for black-tailed prairie dogs on the Pine Ridge Reservation in South Dakota in the early 1980s. This effort resulted in the eradication of most prairie dogs on approximately 458,618 ac (185,740 ha) from 1980 to 1984. From 1985 to 1986, 240,000 ac (97,000 ha) were retreated (Roemer and Forrest 1996). In 1987, after these efforts, 57,281 ac (23,199 ha) of occupied habitat remained (Tschetter 1988). Current estimates of occupied habitat range from 20,000 to 30,000 ac (8,000 to 12,000 ha) (Yellowhair, Pine Ridge Sioux Tribe, pers. comm. 1999). Following control efforts on Pine Ridge, three additional extensive control efforts targeted for the Cheyenne River and Rosebud Reservations in South Dakota and Fort Belknap Reservation in Montana were halted due to concerns regarding the lack of available black-footed ferret reintroduction sites.

Three major impacts have had a substantial influence on black-tailed prairie dog populations. The first major impact on the species was the initial conversion of prairie grasslands to cropland in the eastern portion of its range from approximately the 1880s-1920s. The conversion of native prairie to cropland likely reduced black-tailed prairie dog occupied habitat in the United States from about 80 million ac (32 million ha) to about 50 million ac (20 million ha) or less. The second major impact on the species was large-scale control efforts conducted from approximately 1918-1972 in efforts to reduce competition between prairie dogs and domestic livestock. Repeated control efforts likely reduced black-tailed prairie dog occupied habitat in the United States from about 50 million ac (20 million ha) to approximately 364,000 ac (147,000 ha) by 1961 (Bureau of Sport Fisheries and Wildlife 1961). Some limited recovery and subsequent declines have since occurred in these remnant populations. The third major impact on the species was the inadvertent introduction of an exotic disease from the Old World, sylvatic plague, into North American ecosystems in 1908, with the first recorded impacts on the black-tailed prairie dog in the 1940s. These three factors, as well as other additional factors impacting the species, are discussed below.

We believe that many factors, alone, in combination with each other, and synergistically, have influenced and continue to influence black-tailed prairie dog populations. Historically, large black-tailed prairie dog populations successfully coped with various depressant factors, except plague, on a different scale; populations were large and robust, while threats were few with only short-term effects. Presently, most populations are significantly reduced and must cope with many persistent influences that depress populations, both temporally and permanently. Based upon our review of the available information, we conclude that a general long-term, rangewide decline has occurred, in addition to more recent population declines in some areas.

The persistence of the black-tailed prairie dog as a species may appear secure to some observers because it is relatively abundant in absolute numbers when compared with many other species with smaller populations that are not thought to be vulnerable. Many wildlife species in North America that have experienced significant population declines remain viable (e.g., various game species such as the pronghorn ( Antilocapra americana )). However, the black-tailed prairie dog is a highly social species that, for the most part, responds to major factors causing population reductions (e.g., plague and control) on the basis of entire colonies rather than on an individual basis. Additionally, adequate regulatory mechanisms are not in place to protect or manage populations of the black-tailed prairie dog, as they are with most game species. Therefore, populations are likely not as viable as their absolute numbers might suggest.

A significant portion of existing black-tailed prairie dog occupied habitat rangewide occurs in a few large complexes. Approximately 36 percent of the remaining occupied habitat for the species in North America occurs in seven complexes, each larger than 10,000 ac (4,000 ha). These complexes include—Buffalo Gap National Grassland/Conata Basin, South Dakota; Cheyenne River Reservation, South Dakota; Fort Belknap Reservation, Montana; Janos Nuevo Casas Grandes, Mexico; Pine Ridge Reservation, South Dakota; Rosebud Reservation, South Dakota; and Thunder Basin National Grassland, Wyoming. These complexes are potentially vulnerable to control efforts or plague.

Extant populations of black-tailed prairie dogs may or may not be large enough to be resilient to ongoing or future environmental challenges and related potential declines. Quammen (1996) provided examples of species that were abundant, but suddenly became very rare. For example, he reported that the passenger pigeon ( Ectopistes migratorius ) numbered in the billions around 1810 and in the low millions by the 1880s, yet was extinct in the wild by 1900. Habitat destruction and over-harvesting depressed passenger pigeon numbers to a few million, a level too low for a highly social and colonial species to function (Halliday 1980). The black-tailed prairie dog numbered in the billions around 1900, exists as a few million at present, and appears to be declining in a significant portion of its range. The advantages of sociality (e.g., breeding, feeding, predator defense) may no longer offset its modern disadvantages (e.g., vulnerability to an exotic disease and control efforts). Accordingly, the vulnerability of the black-tailed prairie dog to population reductions is likely related less to its absolute numbers than to the number of colonies in which it exists, their size, their geospatial relationship, existing barriers to immigration and emigration, and ultimately the number and nature of the remaining direct threats to the species.

After a thorough review of the best available scientific and commercial information, we find that sufficient information is currently available to support a determination that listing the black-tailed prairie dog as threatened is warranted. This action is appropriate because of the number and variety of threats that act in concert to adversely affect the species. A significant recent decline in occupied habitat has occurred due to several factors, the most influential of which is the widespread occurrence of plague, an exotic and lethal disease to the species. In concert with plague, the loss of suitable habitat and inadequate regulatory mechanisms have adversely affected remnant fragmented populations. The available information indicates that the species is likely to become endangered throughout all or a significant portion of its range in the foreseeable future.

A major decline in historic black-tailed prairie dog occupied habitat has occurred (perhaps as much as 99 percent). Sixty percent of the species' remnant occupied habitat is vulnerable or very vulnerable to the effects of habitat loss or modification, disease, inadequate regulatory mechanisms, and other factors (Black-footed Ferret Recovery Foundation, in litt. 1999). Based on our review of the available distribution data, we estimate that approximately 30 percent of the historic range no longer supports any appreciable number of black-tailed prairie dogs, and that these reductions occurred at the periphery of the historic range. However, reductions in occupied habitat have also occurred throughout the historic range; approximately 37 percent of the suitable habitat within the historic range in the United States has been fundamentally modified via conversion to cropland and is not available for use by the species (Black-footed Ferret Recovery Foundation, in litt. 1999). Additionally, habitat in approximately 66 percent of the historic range of the species has been degraded by the occurrence of plague (Black-footed Ferret Recovery Foundation, in litt. 1999). These estimates are not additive inasmuch as several factors can affect any given portion of the range.

Recent, widely separated, site-specific declines across the area where 60 percent of the current occupied black-tailed prairie dog habitat now exists appear to be indicative of a general population decline. The overall decline may be similar to the specific decline observed across the State of Montana from 1986 to 1998 when approximately 50 percent of all occupied habitat was lost, largely due to plague (Montana Department of Fish, Wildlife, and Parks 1998). Plague has incrementally extended its range and impacts on black-tailed prairie dogs since it was first documented in the species. It may likely continue to expand into the eastern portions of the species' range in the immediate future, as evidenced by recent reports of predator species' exposure to plague in previously unaffected portions of the black-tailed prairie dog range. A decline of similar magnitude has occurred with populations in Mexico (12 percent of current occupied habitat); however, the decline in Mexico is due to cropland conversion, not plague.

At present, occupied habitat has decreased over the past century by two orders of magnitude (or 99 percent, from approximately 100 million ac to less than 1 million ac). If the magnitude of decline that we have observed due to plague or cropland conversion persists in western portions of the species' range, and manifests itself in eastern portions of the species' range, over the next 30 years existing occupied habitat could decline another order of magnitude to as low as approximately 10 percent of current estimates, or approximately 0.1 percent of historic estimates.

We have evaluated the magnitude and immediacy of threats to the black-tailed prairie dog. The following provides a summary of these evaluations.

Habitat loss and fragmentation are considered a threat of moderate magnitude. The species has lost an estimated 99 percent of its historic occupied habitat, much of it through cropland conversion, largely in the eastern portion of the species' range. However, a considerable amount of potential unoccupied habitat remains, especially in the western portion of the species' range. This unoccupied habitat could be utilized if other factors such as disease and control efforts were not present or were carefully managed via adequate regulatory mechanisms. This threat is considered imminent because habitat loss continues at present in various parts of the species' range from a variety of activities, including cropland conversion, urbanization, change in vegetative communities, and fragmentation.

Overutilization via commercial use of the species as a pet is not considered a threat because of the apparent low number of individuals utilized. Overutilization via recreational shooting is considered a threat of low magnitude. Local populations may be impacted by shooting; however, significant rangewide population declines due to this factor are not likely. This threat is considered imminent because it is ongoing.

Disease is considered a threat of moderate magnitude. Plague has markedly reduced some populations, but has not affected all populations at once. Some population recovery may occur, largely via unaffected adjacent populations, before plague reoccurrence. Plague has impacted the species and its conspecifics throughout a significant portion of their ranges. Black-tailed prairie dog populations demonstrate nearly 100 percent mortality when exposed to plague. An epizootic may affect an entire complex similar to a pathogen affecting an individual animal. The spread of plague in black-tailed prairie dog populations underscores the likelihood that areas as yet unaffected may experience outbreaks in the future. This threat is considered imminent because it is ongoing. Predation is not considered a threat.

Existing regulatory mechanisms are inadequate and considered a threat of moderate magnitude. All States within the current range of the black-tailed prairie dog classify the species as a pest for agricultural purposes and either allow or require its eradication (Mulhern and Knowles 1995). Few regulatory mechanisms exist to aid in conserving the species. This threat is considered imminent because it is ongoing. State wildlife agencies and other interested parties are developing a conservation plan for the species. While we support the States' efforts and will cooperate in conservation actions for the black-tailed prairie dog, at this early stage of development, the conservation assessment and strategy document lacks commitments to specific immediate actions that would affect the status of the species.

Control programs conducted largely in response to concerns related to potential forage competition with domestic livestock are considered a threat of moderate magnitude. Control programs have had significant impacts on population levels in the past. Control efforts resulted in extirpation of the black-tailed prairie dog from Arizona and significant reductions in other States. Current control efforts may impact 10-20 percent of the species' overall population annually (Forrest and Proctor, in prep.). This threat is considered imminent because it is ongoing. Control efforts in some areas could likely be accommodated if adequate regulatory mechanisms were in place that balanced agricultural and wildlife conservation interests.

We conclude that the overall magnitude of threats to the black-tailed prairie dog throughout its range is moderate and the overall immediacy of these threats is imminent. The black-tailed prairie dog is considered a species without subspecies classification. Pursuant to the Service's Listing Priority Guidance (48 FR 43098), a species for which threats are moderate and imminent is assigned a Listing Priority Number of 8. Region 6 currently has nine Candidate species or subspecies that have lower Listing Priority Numbers and, therefore, are in more immediate need of protection. Region 6 also has four species proposed as endangered or threatened, and two species for which proposed rules are under review. Therefore, while we have concluded that the listing of the black-tailed prairie dog as threatened is warranted, an immediate proposal to list is precluded by other, higher priority actions to amend the Lists of Endangered and Threatened Wildlife and Plants.

A complete list of references cited in this notice is available upon request from the South Dakota Field Office (see ADDRESSES section).

Author: The primary author of this document is Pete Gober (see ADDRESSES section).

Amendment 4 to the Atlantic Sea Scallop FMP established a limited access program and a schedule of annual day-at-sea (DAS) allocations for full-time, part-time, and occasional vessels with limited access permits. Although Amendment 4 changed the restrictions on fishing gear and limited the number of crew aboard limited access vessels, the primary management measure to control fishing mortality was the annual DAS allocation. The initial annual allocations in 1994 were 201 days for full-time vessels, 81 days for part-time vessels, and 17 days for occasional vessels. Amendment 4 furthermore established a schedule to reduce by 2000 the annual DAS allocations and fishing mortality. Overfishing was then defined to occur whenever fishing mortality exceeded 0.97. Amendment 4 also established the fishing year, when vessels receive new DAS allocations, as March 1 through February 28/29, and established the annual framework adjustment procedure.

Since 1994, NMFS has implemented several framework adjustments which, among other actions, reduced the crew limit from 9 to 7 persons and adjusted the annual DAS allocations. Closed Area I, Closed Area II, and the Nantucket Lightship Area were closed for scallop fishing through an action promulgated under the Northeast Multispecies FMP to protect groundfish and reduce groundfish bycatch.

Amendment 7 to the Atlantic Sea Scallop FMP changed the overfishing definition to comply with new mandates of the Sustainable Fisheries Act and extended the DAS reduction schedule through 2008 to achieve a 10-year biomass rebuilding objective. To comply with the new overfishing definition and implement the rebuilding schedule, Amendment 7 revised the DAS schedule beginning March 1, 1999. To allow time for industry adjustment to the new regulations, the initial DAS allocations in 1999 were 120 days for full-time vessels, 48 days for part-time vessels, and 10 days for occasional vessels. According to Amendment 7, the DAS allocations in 2000 would be reduced to 51 days for full-time vessels, 20 days for part-time vessels, and 4 days for occasional vessels and would remain below these levels until 2007 when the FMP met the biomass rebuilding targets. The SEIS for Amendment 7 indicated that the 2000 DAS allocations would have negative impacts on the economic viability of the vessels and the scallop fleet. Amendment 7 also modified the framework adjustment process to allow the Council to consider closing and re-opening areas as well as closing two areas in the Mid-Atlantic to protect small scallops that were prevalent there and promote rebuilding.

The Council is considering development of Amendment 10 to develop an area based management system that would, among other things, close areas with high concentrations of small scallops and open them later when the scallops are bigger. The Council believes that shifting fishing effort in this manner could promote rebuilding, improve yield, and reduce the economic impacts of the low DAS allocations. Another purpose of Amendment 10 would be to change the fishing year to allow timelier use of the adjustment mechanism, taking into account when the results of the annual resource abundance survey and other data become available. Other management measures, including individual fishery quotas and transferability, could be considered during the development of Amendment 10 in place of or in addition to DAS allocations and area based management. More details of the issues and problems to be addressed by Amendment 10 are available in a document from the Council office. See ADDRESSES for details.

Tuesday, February 15, 2000 , at 7:30 p.m.

Location: Seaport Inn, 110 Middle Street, Fairhaven, MA 02719; telephone (508) 997-1281.

Wednesday, February 16, 2000 , at 7:30 p.m.

Location: Holiday Inn, Executive Center, 5655 Greenwich Road, Virginia Beach, VA 23462; telephone (757) 499-4400.

Thursday, February 17, 2000 , at 7:30 p.m.

Location: Grand Hotel, 1045 Beach Drive, Cape May, NJ 08204; telephone (609) 884-5611.

These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard (see ADDRESSES ) at least 5 days prior to the meeting dates.