This proposed rule has been determined to be not significant and, therefore, has not been reviewed by the Office of Management and Budget under Executive Order 12866.

This proposed rule has been reviewed in accordance with Executive Order 12988, Civil Justice Reform. RUS has determined that this proposed rule meets the applicable standards provided in section 3 of that Executive Order. In addition, all State and local laws and regulations that are in conflict with this rule will be preempted; no retroactive effect will be given to this rule; and, in accordance with section 212(e) of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. 6912(e)), administrative appeal procedures, if any are required, must be exhausted prior to initiating litigation against the Department or its agencies.

RUS has determined that this proposed rule will not have a significant economic impact on a substantial number of small entities, as defined by the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The RUS telecommunications loan program provides borrowers with loans at interest rates and terms that are more favorable than those generally available from the private sector. RUS borrowers, as a result of obtaining federal financing, receive economic benefits that exceed any direct cost associated with complying with RUS regulations and requirements.

This proposed rule contains no new reporting or recordkeeping burdens under OMB control number 0572-0079 that would require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35).

Send questions or comments regarding this burden or any other aspect of these collections of information, including suggestions for reducing the burden to F. Lamont Heppe, Director, Program Development and Regulatory Analysis, Rural Utilities Service, 1400 Independence Avenue, SW., Room 4034, STOP 1522, Washington, DC 20250-1522.

The Administrator of RUS has determined that this proposed rule will not significantly affect the quality of the human environment as defined by the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ). Therefore, this action does not require an environmental impact statement or assessment.

The program described by this proposed rule is listed in the Catalog of Federal Domestic Assistance programs under numbers 10.851, Rural Telephone Loans and Loan Guarantees, and 10.852, Rural Telephone Bank Loans. This catalog is available on a subscription basis from the Superintendent of Documents, the United States Government Printing Office, Washington, 20402-9325. Telephone: (202) 512-1800.

This program is excluded from the scope of Executive Order 12372, Intergovernmental Consultation, which may require consultation with State and local officials. See the final rule related notice entitled “Department Programs and Activities Excluded from Executive Order 12372,” (50 FR 47034).

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

The telecommunications industry is becoming increasingly competitive. The Telecommunications Act of 1996 (Public Law 104-104) and regulatory actions by the Federal Communications Commission are drastically altering the regulatory and business environment of all telecommunications systems, including RUS borrowers. At the same time, changes in overall business trends and technologies continue to place pressure on RUS-financed systems to offer a wider array of services and to operate more efficiently.

RUS regulations currently stipulate that an entity must provide or propose to provide the basic local exchange telephone service needs of rural areas to be eligible for RUS financing (7 CFR 1735.14, Borrower Eligibility) and that loans cannot be made for facilities to serve subscribers outside the borrower's local exchange service area (7 CFR 1735.17, Facilities Financed). The Telecommunications Act of 1996, however, made the term “basic local exchange service” obsolete. The law mandates that universally available and affordable telecommunications services, including access to advanced services, be made available to all US citizens—whether in rural areas or city centers, affluent or poor communities. RUS supports this mandate and the goal that, with the assistance of advanced telecommunications technology, rural citizens be provided the same economic, educational, and health care benefits available in the larger metropolitan areas. RUS believes that the most expeditious way to bring the full range of telephone services to rural areas is to make certain providers of services, in addition to providers of local exchange services, eligible for RUS financing. Mobile telecommunications services are included among the telephone services financeable under the Rural Electrification Act (RE Act) and contemplated in the Telecommunication Act of 1996. Mobile telecommunications service is fundamentally different from wireline service and RUS believes that, in addition to wireline service, mobile telecommunications services should be made available in all rural areas. Therefore, RUS is deleting its requirement that all borrowers provide local exchange service. Since mobile telecommunications services do not and cannot serve the same function as contemplated in state telecommunications modernization plans (TMPs) for wireline services (see 7 CFR 1751.106), RUS policy is to consider a borrower receiving a loan to finance such services to be participating in the state's plan so long as the loan funds are not used in a manner that, in RUS' opinion, is inconsistent with the borrower achieving the goals set forth in the plan. RUS will continue to follow this policy regardless of whether the borrower provides any local exchange services. In addition, RUS has included criteria for determining “reasonably adequate service” levels for mobile telecommunications service.

RUS regulations are also utilized by the Governor of the Rural Telephone Bank in carrying out the Rural Telephone Bank's (the Bank) loan program; therefore, these policy revisions would apply to loans made by the Bank, as well.

For the reasons set forth in the preamble, 7 CFR chapter XVII is proposed to be amended as follows:

Section 106(b) of the Bank Holding Company Act Amendments of 1970 (12 U.S.C. 1972) generally prohibits a bank from tying the availability or price of a product or service to the purchase by a customer of another product or service offered by the bank or any of its affiliates. A bank engages in a tie for purposes of section 106 by conditioning the availability of, or offering a discount on, one product or service (the “tying product”) on the condition that the customer obtain some additional product or service (the “tied product”) from the bank or from any of its affiliates. Violations of section 106 can be addressed by the Board through an enforcement action, by the Department of Justice through a request for an injunction, or by a customer or other party through an action for damages. 12 U.S.C. 1972, 1973, and 1975.

Section 106 contains an explicit exception (the “statutory traditional bank product exception”) that permits a bank to tie a product or service to a loan, discount, deposit, or trust service (“a traditional bank product”) offered by that bank. The Board has extended this exception by providing that a bank may condition the availability of, or vary the consideration for, any product or service on the condition that the customer obtain a traditional bank product from an affiliate of the bank (the “regulatory traditional bank product exception”). 1 The Board adopted the regulatory traditional bank product exception in its present form because inter-affiliate transactions do not appear to pose any greater risk of anti-competitive behavior than intra-bank transactions, and because Congress had extended the statutory traditional bank product exception to cover inter-affiliate transactions for savings associations and their affiliates. 2

Section 106 authorizes the Board to grant exceptions to its restrictions by regulation or order. On December 7, 1999, the General Counsel of the Board issued a legal interpretation indicating the Board's view that section 106 does not prohibit a credit card bank from issuing a credit card that may be used to make purchases from a retailer affiliated with the credit card bank (“private-label credit card”). 3 The Interpretation did not address the situation where a bank or its retailer affiliate offer discounts on their respective products in connection with a private-label credit card arrangement, as that situation was not presented by the request for an interpretation. The proposed exception also does not cover that situation.

The Board is proposing to use its statutory authority to grant a regulatory exemption to section 106 for private-label credit cards that may be used at a retailer affiliated with the issuing bank. The Board is proposing the exception in order to disseminate the Board's view, as reflected in the Interpretation, that such arrangements are not as a general matter anticompetitive, and to create a rule of more general applicability not limited to the facts on which the Interpretation was based.

Because section 106 prohibits a bank from offering or discounting a product or service on the condition that the customer obtain some additional product or service from the bank or from any of its affiliates, the question arose as to whether a private-label credit card arrangement violates that restriction when credit is extended only when a customer makes a purchase from a retailer affiliated with the issuing bank. Although the extension of credit through the private-label credit card is not conditioned on any particular product being purchased, or on purchases being made from any particular retailer, the lack of a network with other retailers limits the ability of the customer to access that credit other than by purchasing a product or service from the affiliated retailer. In the private-label credit card arrangement described in the Interpretation, there is no contractual limitation on where the card can be used to make purchases. The reason why the private-label credit card can only be used at the affiliated retailer is that the retailer is the only merchant able to communicate with the issuing bank regarding whether credit should be extended on the card.

The Interpretation reflects the Board's belief that private-label credit cards issued by a bank affiliated with the relevant retailer do not generally involve the type of anticompetitive activity that section 106 was intended to address. Section 106 was intended to prevent banks from using their market power in banking products to gain an unfair competitive advantage in markets for non-banking products and services. The type of private-label credit card arrangements described in the Interpretation do not raise such concerns, however, because they do not involve a banking organization's attempt to expand into retailing, but rather a retailer's attempt to provide an additional convenience for its customers. Additionally, because the same products and services can be purchased from the retailer for the same price using payment methods other than the private-label credit card, customers wishing to purchase those products and services are not coerced into using the private-label credit card. The Interpretation also noted that such transactions are driven by the customer's desire to purchase the product or service, not by the availability or nonavailability of credit from the affiliated bank.

For these reasons, the Board is proposing to establish, through a regulatory exception, a safe harbor for private-label credit card arrangements where such cards may only be used to make purchases from a retailer affiliate of the issuing bank. The proposed safe harbor is consistent with the concerns of section 106 about anticompetitive behavior. The proposal requires that the products or services be available for purchase at the same price by means other than the private-label credit card, such as cash or credit cards issued by a third party. Furthermore, the issuing bank may not discount the credit it offers through the private-label credit card to customers who use the card to make purchases at the bank's retailer affiliate. Because a customer could purchase any product or service from the retailer for the same price, regardless of the payment method, the only incentive for the customer to use the private-label credit card is the convenience it offers as an alternative source of credit for use in making purchases from the retailer affiliate. For this reason, the Board does not believe that the proposed rule would allow coercive or anticompetitive practices, or otherwise contravene the purposes of section 106.

Finally, the Board believes that the proposed rule would benefit the public by providing consumers with alternative sources of consumer credit.

No collections of information pursuant to section 3504(h) of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ) are contained in the proposed rule.

This proposal is not expected to have a significant economic impact on a substantial number of small business entities within the meaning of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). It is intended to allow affected businesses to expand the services they may offer to customers.

For the reasons set forth in the preamble, the Board amends 12 CFR Part 225 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-05-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-05-AD, 2601 Meacham Blvd., Room 663, Fort Worth, Texas 76137.

The Luftfahrt-Bundesamt (LBA), which is the airworthiness authority for the Federal Republic of Germany, notified the FAA that an unsafe condition may exist on Eurocopter Model EC 135 helicopters. The LBA advises that breakage of fan drive shafts, which occurred on two helicopters, resulted in failure of the fan and reduced oil cooling.

Eurocopter has issued Eurocopter Alert Service Bulletin No. EC 135-79A-001, dated January 23, 1998 (ASB), which specifies replacing the “shafts with spline” with new reinforced shafts. The LBA classified this ASB as mandatory and issued AD No. 1998-109, dated February 26, 1998, in order to assure the continued airworthiness of these helicopters in the Federal Republic of Germany.

This helicopter model is manufactured in the Federal Republic of Germany 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 LBA has kept the FAA informed of the situation described above. The FAA has examined the findings of the LBA, 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 Eurocopter Model EC 135 helicopters of the same type design registered in the United States, the proposed AD would require replacing each shaft, part number (P/N) L 792M3004 225, with an airworthy shaft, P/N L 792M3004 235; re-identifying the left oil cooler fan, P/N L792M3004 102 with P/N L 792M3004 103, and right oil cooler fan, P/N L792M3005 102 with P/N L 792M3005 103, and reflecting these changes in the gearbox component history card or equivalent record. Replacing, re-identifying, and recording these changes would be considered terminating actions for the requirements of this AD.

The FAA estimates that 9 helicopters of U.S. registry would be affected by this proposed AD, that it would take approximately 4 work hours per helicopter to replace and re-identify the affected parts and record these actions in the gearbox history card or equivalent record, and that the average labor rate is $60 per work hour. The manufacturer has stated in Alert Service Bulletin EC 135-79A-001, dated January 23, 1998, that required parts would be provided at no cost. Based on these figures, the total cost impact of the proposed AD on U.S. operators is estimated to be $2,160 to accomplish the proposed actions on all the U.S. fleet.

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 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-39-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-39-AD, 2601 Meacham Blvd., Room 663, Fort Worth, Texas 76137.

On June 19, 1998, the FAA issued AD 98-14-01, Amendment 39-10635 (63 FR 35128, June 29, 1998), to require visual and dye-penetrant inspections of the cross-beam for cracks and replacement with an airworthy cross-beam if a crack is found. That action was prompted by several reports of cracks in the cross-beam. The requirements of that AD are intended to provide a terminating action to prevent failure of the cross-beam that could cause the main gearbox to pivot resulting in severe vibrations and a subsequent forced landing.

Since the issuance of that AD, the FAA has discovered that the time intervals for performing the required repetitive dye-penetrant inspections on cross-beams with 5,000 or more hours TIS were not included. The initial dye-penetrant inspection for cracks must be performed when the cross-beams attain 5,000 hours TIS or 2,750 cycles, whichever occurs first. Thereafter, repetitive dye-penetrant inspections for cracks must be performed at intervals not to exceed 550 hours TIS or 2,750 operating cycles, whichever occurs first.

Since an unsafe condition has been identified that is likely to exist or develop on other Eurocopter France Model AS-350B, BA, B1, B2, and D, and Model AS-355E, F, F1, F2, and N helicopters of the same type design, the proposed AD would supersede AD 98-14-01 to require, at specified time intervals or cycles, repetitive visual and dye-penetrant inspections of the cross-beam for cracks, and replacing, if necessary, the cross-beam with an airworthy cross-beam.

The FAA estimates that 454 helicopters of U.S. registry would be affected by this proposed AD; that it would take approximately 0.5 work hour per helicopter to accomplish each visual inspection, with an estimated average of 150 visual inspections per helicopter, 3 work hours per helicopter to accomplish a dye-penetrant inspection, with an estimated average of 3 dye-penetrant inspections per helicopter, and 6 work hours per helicopter to replace the cross-beam, if necessary; and that the average labor rate is $60 per work hour. Parts would cost approximately $6,000 per cross-beam. Based on these figures, the total cost impact of the proposed AD on U.S. operators is estimated to be $5,175,600 to perform 150 visual inspections and an average of 3 dye-penetrant inspections per helicopter and to replace the cross-beam on all 454 helicopters.

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:

Title II of the Act provides for the payment of disability insurance benefits to workers insured under the Act. Title II also provides, under certain circumstances, for the payment of child's insurance benefits for persons who become disabled before age 22 and widow's and widower's insurance benefits based on disability for widows, widowers, and surviving divorced spouses of insured individuals. In addition, title XVI of the Act provides for Supplemental Security Income (SSI) payments to persons who are aged, blind, or disabled and who have limited income and resources.

For adults under both the title II and title XVI programs and for persons claiming child's insurance benefits based on disability under the title II program, “disability” means that an impairment(s) results in an inability to engage in any substantial gainful activity. For an individual under age 18 claiming SSI benefits based on disability, “disability” means that an impairment(s) results in “marked and severe functional limitations.” Under both title II and title XVI, disability must be the result of any medically determinable physical or mental impairment(s) that can be expected to result in death or that has lasted or can be expected to last for a continuous period of at least 12 months.

The process for determining whether an individual (except for an individual under age 18 claiming SSI benefits based on disability) is disabled based on the statutory definition is set forth in our longstanding regulations at §§ 404.1520 and 416.920. These regulations provide for a sequential evaluation process for evaluating disability. There is a separate sequential evaluation process described in regulations at § 416.924 for individuals under age 18 claiming SSI benefits based on disability. At step 3 of both sequential evaluation processes we ask the same question: Whether an individual who is not engaging in substantial gainful activity and who has an impairment(s) that is severe, has an impairment(s) that meets or equals in severity the criteria of an impairment listed in appendix 1 of subpart P of part 404, the listings. The listings describe, for each of the major body systems, impairments that are considered severe enough to prevent a person from doing any gainful activity (or in the case of a child under age 18 claiming SSI benefits based on disability, to cause marked and severe functional limitations). Although the listings are contained only in part 404, they are referenced by subpart I of part 416.

The listings are divided into Part A and Part B. The criteria in Part A are applied in evaluating impairments of persons age 18 or over. The criteria in Part A may also be used to evaluate impairments in persons under age 18 if the disease processes have a similar effect on adults and children. In evaluating disability for a person under age 18, we first use the criteria in Part B and, if the criteria in Part B do not apply, we use the criteria in Part A (see §§ 404.1525 and 416.925).

These changes are not intended to be a comprehensive update and revision of the listings. We continue to review each of the body system listings to determine appropriate revisions and updates of a more substantive nature. If we determine that more substantive revisions are necessary, we will publish a notice in the Federal Register describing those proposed revisions and requesting public comments. Therefore, we are now requesting comments only on the specific technical changes we are proposing in this notice of proposed rulemaking.

The following is a detailed summary of the proposed revisions and our reasons for proposing these changes.

We propose to revise the language throughout all listings regarding references to “X-ray(s),” roentgenograms (which is another word for X-rays), and radiographic studies (which is another process similar to roentgenography), to include “other appropriate medically acceptable imaging” as satisfactory medical evidence. The proposed changes occur in the following sections and/or listings:

Sections 1.00A, 1.00B and 1.00C of the preface to the musculoskeletal body system and Listings 1.03, 1.04, 1.05, 1.08, 1.09, and 1.11;

Section 2.00B2 of the preface to the special senses and speech body system;

Section 4.00C3 of the preface to the cardiovascular system;

Section 5.00C of the preface to the digestive system and Listings 5.03, 5.04, and 5.05;

Listing 6.02C1 of the genito-urinary system;

Listing 7.16A of the hemic and lymphatic system;

Listing 9.03A of the endocrine system;

Listing 14.08M6 of the immune system;

Section 100.00B of the preface to growth impairments;

Listings 101.02A3 and 101.08 of the musculoskeletal system;

Listing 103.04B3 of the respiratory system;

Section 104.00E of the preface to the cardiovascular system;

Section 105.00B of the preface to the digestive system and Listings 105.05A and 105.05C;

Section 113.00B of the preface to the neoplastic diseases; and,

Listing 114.08N6 of the immune system.

We are proposing these changes to recognize that there have been significant advances in medical imaging, such as (but not limited to) computerized axial tomography (CAT scan) and magnetic resonance imaging (MRI), and to increase the types of evidence that can be used to meet the listings. Under §§ 404.1525 and 416.925 of our regulations, an individual's impairment “meets” the criteria of a given listing only by showing the same findings that are required in the listing. Because of this, an individual who has all of the findings required by a listing except X-ray evidence but who has the same or better information from a CAT scan, MRI, or other medically acceptable modern imaging technique than can be gotten from X-ray cannot meet the listing; instead, we must find that the individual's impairment medically equals the listing. The proposed changes would allow us to find that such individuals have impairments that meet these listings. We also made the proposed phrase nonspecific to allow for flexibility in the use of the use of the listings should new medically appropriate imaging techniques be developed in the future.

We are also proposing to add a brief explanation in the prefaces of the musculoskeletal adult and childhood listings (in paragraphs 1.00B and 101.00B, respectively) to explain what we mean by appropriate medically acceptable imaging techniques, and to explain that we will not purchase such expensive tests as CAT scans or MRIs in the course of obtaining documentation, but we will consider the results of these tests if they are available.

We are making a correction to Listing 1.09 to move the word “of” to its proper placement following the parenthetical text that describes what we mean by “Amputation or anatomical deformity.” The “of” is currently incorrectly placed after the word “deformity,” and before the explanatory parenthetical language.

We are proposing to amend childhood Listing 101.08, Chronic osteomyelitis, to make it consistent with the language and criteria of adult Listing 1.08, which addresses osteomyelitis or septic arthritis. Since the adult listing is more complete and comprehensive, we are amending the childhood listing to be consistent with the adult listing.

We propose to revise the heading of 2.00A to read “ Disorders of Vision ” because the term currently used, “ Ophthalmology, ” is most commonly used to define the branch of medicine that deals with the anatomy, physiology, and pathology of the eye, whereas these listings, in fact, address visual disorders.

We propose to remove the word “central” in referring to vision and visual acuity throughout 2.00 and 102.00 because it is redundant. “Central vision” is medically synonymous with “visual acuity.” We propose to revise 2.00A1 to explain that diseases or injury of the eyes may result in loss of visual acuity or loss of the peripheral field. It is the loss of visual acuity that results in inability to distinguish detail and prevents reading and fine work, while the loss of the peripheral field restricts the ability of an individual to move about freely. We propose to clarify this section by stating that the extent of impairment of sight should be determined by visual acuity and peripheral field testing. Likewise, in 2.00A2, with the removal of the word “central,” we also propose to revise the opening sentence to clarify that loss of visual acuity may result in impaired distant and/or near vision (not “caused by” impaired vision).

Thus, we are proposing to remove the word “central” from the following: 2.00A1, 2.00A2, 2.00A5, 2.00A6, 2.02, Table No. 1 and its footnotes 2 and 3, 102.00A, and 102.02.

Also, we propose to further revise Table No. 1 by adding the word “acuity” to the first line of the chart, “Percent visual acuity efficiency,” and also to the title, “Percentage of Visual Acuity Efficiency Corresponding to Visual Acuity Notations * * *”.

Additionally, we propose clarifying the language of Listing 2.04 by replacing the phrase “central visual efficiency” with the phrase “visual acuity efficiency.”

We propose to revise 2.00B3 by removing the word “organic” from its title, removing the first sentence of the section, and amending the second sentence to clarify that the ability to produce speech by any means includes the use of mechanical or electronic devices that improve voice or articulation. Also in this section, we propose to correct the reference to “neurologic” disorders by appropriately calling them “neurological” disorders.

We propose to remove Listing 2.05, Complete homonymous hemianopsia (with or without macular sparing) because the language of 2.05 now directs that this disorder should be evaluated under Listing 2.04. Since we are not proposing to change Listing 2.04 in any substantive way, we will still use this listing to evaluate complete homonymous hemianopsia and there is no need to retain the separate listing.

We propose to revise Listing 2.09, Organic loss of speech, to remove the word “organic” because we believe that the cause of loss of speech ( i.e., whether it is or is not “organic”) should be immaterial for purpose of applying this listing. We also propose to change the word “and” to “or” to clarify that the inability to produce speech that can be heard, understood, or sustained will meet the listing, instead of the requirement under the current language that all three of these factors be present. We believe that any one of these factors is sufficient to establish that an individual has a listing-level impairment.

In the listing preface, we propose to revise some of the technical language dealing with the requirements for spirometry calibration and testing for diffusing capacity of the lungs for carbon monoxide (DLCO) to comply with the standards of current medical practice.

In 3.00E and 103.00B, Documentation of pulmonary function testing, we propose to revise the last sentence of the third paragraph of each section to explain that the testing device must have a daily recorded calibration of volume units performed sometime prior to the pulmonary function study. This revises the current requirement for separate calibration tracings to be performed at the time each pulmonary function test is performed. We believe a single daily calibration of the testing device is sufficient to provide accurate pulmonary measurements for purposes of our listings.

In 3.00F1, Diffusing capacity of the lungs for carbon monoxide (DLCO), fifth paragraph, fourth and fifth sentences, we are proposing the deletion of the reference to the algorithm used to calculate test results and the language regarding “independent calculation of results.” We believe this algorithm no longer needs to be provided in the documentation of DLCO since adjudicators are not expected to recompute the test results. Rather, we are asking that the file include documentation of the source of the predicted equation to permit adjudicators to verify that the test was performed adequately.

We propose to add a new listing addressing lung transplants for both adults and children. Listing 3.11 for adults and Listing 103.05 for children, Lung transplant, is proposed to be consistent with other organ transplant listings and to provide that an individual undergoing a lung transplant will be considered under a disability for 12 months following the date of surgery with evaluation of any residual impairment thereafter.

In 4.00A, Introduction, fourth paragraph, second sentence, and 104.00A, Introduction, sixth paragraph, second sentence, we propose to revise the language to change the word “make” to the word “consider” in the clause referring to making a medical equivalence determination in the case of an adult, and for children, a medical or functional equivalence determination. The current language could be misinterpreted to mean that, when an individual has a medically determinable impairment that is not listed, or a combination of impairments no one of which meets a listing, we will find that his or her impairment is medically equivalent to a listing, or for children, medically or functionally equivalent to a listing. Our intent has always been to indicate only that we will consider whether the impairment or combination of impairments is medically equivalent (or for children medically or functionally equivalent) to a listing. This is only a clarification of what we have always intended by the language in these sections.

As discussed above, we are proposing to amend Listings 5.05A and 105.05C to allow for documentation of esophageal varices by X-rays, endoscopy, or other appropriate medically acceptable imaging. This will allow for changes in medical technology over time and will eliminate the current unnecessary language differences in the parenthetical portion of these listings.

We propose to add a new listing to both the adult and childhood listings for the digestive system to address liver transplantation in keeping with our other organ transplantation listings. For adults, the new listing will be 5.09, Liver transplant; for children, it will be 105.09, Liver transplant.

Also, we are correcting a typographical error in 5.00C.

We propose to add T-cell lymphoblastic lymphoma to the discussion of acute leukemia in sections 7.00E and 107.00C as well as in Listings 7.11 and 107.11. This disorder follows the same course and requires the same treatment as acute leukemia and is just as serious. By including this disorder in the preface and as a listed impairment in both the adult and childhood listings, we believe evaluation will be simplified by specifically directing adjudicators to the criteria for evaluating this disease.

We propose to amend the reference to bone marrow transplantation in Listing 7.17, Aplastic anemias or hematologic malignancies (excluding acute leukemia), to “bone marrow or stem cell transplantation” to add the new medical technique of stem cell transplantation which is comparable to bone marrow transplantation.

We are correcting a spelling error in Listing 8.06. The correct name of this impairment is Hidradenitis suppurative, acne conglobata.

We propose to revise Listing 9.02, Thyroid Disorders, to remove paragraph A, which refers to “Progressive exophthalmos as measured by exophthalmometry,” because this complication now rarely occurs due to advances in treatment for thyroid disease.

We are proposing changes in the language that we currently use for epilepsy and its treatment throughout these listings to make our listing language consistent with current medical terminology. For example, we propose changing the term “convulsive disorders” in 11.00A to “epilepsy,” and changing the references to “anticonvulsive” treatment and drugs to “antiepileptic” treatment and drugs to reflect current medical terminology. In keeping with these changes in terminology, we are also proposing changing the descriptions of the categories of epilepsy under Listings 11.02 and 11.03 in Part A, and Listings 111.02 and 111.03 in Part B. In place of the term major motor seizures (11.02 and 111.02) we are proposing “convulsive epilepsy,” and for the term minor motor seizures (11.03 and 111.03), we are proposing “nonconvulsive epilepsy.” These terms are in keeping with current medical terminology.

We also propose to remove the requirement for electroencephalogram (EEG) evidence to support the existence of epilepsy throughout the neurological listings with the exception of cases involving nonconvulsive epilepsy in children. This is the only category of epilepsy in which an EEG is the definitive diagnostic tool; in all other situations of epilepsy, it is rare for an EEG to confirm the presence of a seizure disorder.

We propose to amend the language of Listing 111.02B3 by changing it from “significant emotional disorder” to “significant mental disorder.” This clarifies the nature of the impairment identified, i.e., a defined mental impairment, and is consistent with other listing terminology.

We propose to remove Listing 11.15, Tabes dorsalis, because the availability of effective screening tests and treatment have markedly reduced the incidence of this disorder. With the capability to do early identification and treatment in cases of syphilis, the disease that leads to Tabes dorsalis, we believe this listing is no longer needed.

With the proposal to remove Listing 11.15, we are also proposing to remove the reference to 11.15B currently in Listing 11.17A, which deals with disorganization of motor function in degenerative diseases such as Huntington's chorea and Friedreich's ataxia. The disorganization of motor function described in Listing 11.04B includes disturbances of gait as described in 11.15B, so we believe that the reference to 11.04B is sufficient to address the manifestations of the degenerative diseases covered by Listing 11.17.

We are proposing to highlight a portion of the language in the capsule definition of Listing 12.05 by italicizing it. Listing 12.05 deals with mental retardation and autism. Mental retardation is defined as a significantly subaverage general intellectual functioning with deficits in adaptive behavior initially manifested during the developmental period (before age 22). To draw the user's attention to the portion dealing with the time period for the manifestations of these deficits, we propose to italicize the text initially manifested during the developmental period (before age 22).

We are proposing to correct an error in Listing 112.05F1 and 112.05F2. The word “limitations” should be “limitation.” This is consistent with the wording of the adult Listing 12.05C, “imposing additional and significant work-related limitation of function.”

We propose to amend Listing 13.08, Thyroid gland, adding another criterion, “Anaplastic carcinoma of the thyroid.” This would be designated as 13.08B, and the current listing language would become 13.08A. Anaplastic carcinoma of the thyroid is a distinct type of carcinoma that can be specified as part of this listing because it is of the same level of severity as the current listing and has a poor prognosis. We believe that identifying it separately will assist adjudicators in evaluating thyroid neoplasms.

Executive Order 12866 and the President's memorandum of June 1, 1998, (63 F.R. 31885), require each agency to write all rules in plain language. In addition to your substantive comments on these proposed rules, we invite your comments on how to make these proposed rules easier to understand.

For example:

• Have we organized the material to suit your needs?

• Are the requirements in these rules clearly stated?

• Do the rules contain technical language or jargon that isn't clear?

• Would a different format (grouping and order of sections, use of headings, paragraphing) make these rules easier to understand?

• Would more (but shorter) sections be better?

• Could we improve clarity by adding tables, lists, or diagrams?

• What else could we do to make these rules easier to understand?

The electronic file of this document is available on the internet at http://www.access.gpo.gov/su_docs/aces/aces140.html. It is also available on the internet site for SSA (i.e., “SSA Online”) at http://www.ssa.gov/.

We have consulted with the Office of Management and Budget (OMB) and determined that these proposed regulations do not meet the criteria for a significant regulatory action under Executive Order 12866. Thus, they were not subject to OMB review.

We certify that these proposed regulations will not have a significant economic impact on a substantial number of small entities because they affect only individuals. Thus, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required.

These proposed regulations will impose no additional reporting or recordkeeping requirements requiring OMB clearance.

For the reasons set forth in the preamble, we are proposing to amend part 404, subpart P, and part 416, subpart I of chapter III of title 20 of the Code of Federal Regulations as follows:

a. Section 1.00 in part A of appendix 1 is amended:

(1) By revising the last sentence of paragraph A;

(2) By revising the first sentence in the second paragraph of paragraph B;

(3) By adding a new eighth paragraph to paragraph B; and,

(4) By revising paragraph C;

b. Section 1.03 in part A of appendix 1, paragraph A is revised.

c. Section 1.04 in part A of appendix 1 is amended by revising the introductory text.

d. Section 1.05 in part A of appendix 1 is amended by revising the introductory text in paragraphs A and B.

e. Section 1.08 in part A of appendix 1 is amended by revising the heading.

f. Section 1.09 in part A of appendix 1 is amended by revising the heading.

g. Section 1.11 in part A of appendix 1 is revised.

h. Section 2.00 in part A of appendix 1 is amended:

(1) By revising the heading of paragraph A;

(2) By revising paragraph A1, the first two sentences of paragraph A2, and paragraph A5;

(3) By amending paragraph A6 to remove the word “central” in the first, fourth, fifth, and sixth sentences;

(4) By revising the last sentence in the third paragraph of paragraph B2;

(5) By revising paragraph B3;

(6) By amending Table No. 1 by revising the heading to read, “Percentage of visual acuity efficiency corresponding to visual acuity notations for distance in the phakic and aphakic eye (better eye)” by revising the heading of the right column on the first line of the table to read, “Percent visual acuity efficiency”; and by amending footnotes 2 and 3 to Table No. 1 by removing the word “central.”

i. Section 2.02 in part A of appendix 1 is amended by removing the word “central” in the heading.

j. Section 2.04 in part A of appendix 1 is revised.

k. Section 2.05 in part A of appendix 1 is removed and reserved.

l. Section 2.09 in part A of appendix 1 is revised.

m. Section 3.00 in part A of appendix 1 is amended by revising the last sentence in the third paragraph of paragraph E, and by amending paragraph F1 by revising the fourth and fifth sentences of the fifth paragraph.

n. Section 3.11 in part A of appendix 1 is added.

o. Section 4.00, paragraph A, in part A of appendix 1 is amended in the second sentence of the fourth paragraph by revising “make” to read “consider”, and in paragraph C3 by amending the third sentence of the first paragraph.

p. Section 5.00, paragraph C, in part A of appendix 1 is amended in the fourth sentence by revising “roentgenograms” to read “X-rays or other appropriate medically acceptable imaging,” and by revising “impairmentich” to read “impairment which.”

q. Section 5.03 in part A of appendix 1 is revised.

r. Section 5.04 in part A of appendix 1 is amended by revising the heading and by revising paragraph C.

s. Section 5.05 in part A of appendix 1 is amended by revising the first sentence in paragraph A.

t. Section 5.09 in part A of appendix 1 is added.

u. Section 6.02 in part A of appendix 1 is amended by revising paragraph C1.

v. Section 7.00 in part A of appendix 1 is amended by revising the heading and the first sentence of the first paragraph of paragraph E.

w. Section 7.11 in part A of appendix 1 is amended by revising the heading.

x. Section 7.16 in part A of appendix 1 is amended by revising paragraph A.

y. Section 7.17 in part A of appendix 1 is amended by revising the first sentence.

z. Section 8.06 in part A of appendix 1, the heading is amended by revising “Hydradenitis” to read “Hidradenitis.”

aa. In section 9.02 in part A of appendix 1, the word “With:” following the heading and paragraph A are removed and the paragraph designation “B” is removed from paragraph B.

bb. Section 9.03, paragraph A, in part A of appendix 1 is revised.

cc. Section 11.00, paragraph A, in part A of appendix 1 is amended by revising the heading, by revising the first sentence in the first paragraph, by removing the second paragraph, by redesignation the third paragraph as the second paragraph and by amending the first, second and third sentences in the redesignating second paragraph to revise the word “anticonvulsive” to read “antiepileptic.”

dd. Section 11.02 in part A of appendix 1 is amended by revising the heading.

ee. Section 11.03 in part A of appendix 1 is amended by revising the heading.

ff. Section 11.15 in part A of appendix 1 is removed and reserved.

gg. Section 11.17, paragraph A, in part A of appendix 1 is amended by removing the words “or 11.15B”.

hh. Section 12.05 in part A of appendix 1 is amended by revising the first sentence of the introductory text.

ii. Section 13.08 in part A of appendix 1 is revised.

jj. Section 14.08 in part A of appendix 1 is amended by revising paragraph M6.

kk. Section 100.00, paragraph B, in part B of appendix 1 is revised.

ll. Section 101.00, paragraph B, in part B of appendix 1 is amended by adding a second paragraph.

mm. Section 101.02, paragraph A3, in part B of appendix 1 is revised.

nn. Section 101.08 in part B of appendix 1 is revised.

oo. Section 102.00 in part B of appendix 1, is amended by removing the word “central” from the first and second sentences of paragraph A.

pp. Section 102.02 in part B of appendix 1 is amended by removing the word “central” from the heading.

qq. Section 103.00, paragraph B, in part B of appendix 1 is amended by revising last sentence of the third paragraph.

rr. Section 103.04, paragraph B3, in part B of appendix 1 is revised.

ss. Section 103.05 in part B of appendix 1 is added after Table III.

tt. Section 104.00, paragraph A, in part B of appendix 1 is amended in the last sentence of the sixth paragraph by revising “make a determination” to read “consider,” and paragraph E is amended by revising the first sentence of the third paragraph.

uu. Section 105.00 in part B of appendix 1, is amended to revise the first sentence in paragraph B.

vv. Section 105.05, paragraphs A and C, in part B of appendix 1 are revised.

ww. Section 105.09 in part B of appendix 1 is added.

xx. Section 107.00, paragraph C, in part B of appendix 1 is amended by revising the heading and by revising the first sentence of the first paragraph.

yy. Section 107.11 in part B of appendix 1 is amended by revising the heading.

zz. Section 111.00 in part B of appendix 1, paragraph A is revised and paragraph B is amended by revising the heading, and by removing the second sentence.

aaa. Section 111.02 in part B of appendix 1 is amended by revising the headings of paragraphs A and B; by revising the first sentence of the introductory text of paragraphs A and B; and by revising paragraph B3.

bbb. Section 111.03 in part B of appendix 1 is amended by revising the heading.

ccc. Section 112.05, paragraphs F1 and F2, in part B of appendix 1 are amended by revising “limitations” to read “limitation.”

ddd. Section 113.00 in part B of appendix 1, is amended by revising the third sentence in paragraph B.

eee. Section 114.08, paragraph N6, in part B of appendix 1, paragraph N6 is revised.

The added and revised text is as follows:

We invite you to submit comments regarding these proposed regulations.

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

During and after the comment period, you may inspect all public comments about these proposed regulations in the Department of Education, Teacher Quality Program Office, 1990 K Street NW, 6th floor, Washington, DC. Comments are available for inspection between the hours of 8:30 a.m. and 4:00 p.m., Eastern time, Monday through Friday of each week except Federal holidays.

In order to ensure sufficient time to prepare and review grant applications submitted for FY 2000, the Department will need to publish final regulations for these programs as soon as possible after the expiration of the public comment period. For this reason, while you have 30 days to submit public comment, we urge you to submit comments to us on or before February 25, 2000. In addition, we also urge those who wish to comment on the information collection requirements contained in the program application packages to send written comment on or before February 25, 2000. See the discussion in the section entitled “Paperwork Reduction Act of 1995” and the addressee identified in that section to whom comments should be sent.

On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for these proposed regulations. If you want to schedule an appointment for this type of aid, you may call (202) 205-8113 or (202) 260-9895. If you use a TDD, you may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.

On October 8, 1998, the President signed into law the Higher Education Amendments of 1998 (Pub. L. 105-244). This law addresses the Nation's need to ensure that new teachers enter the classroom prepared to teach all students to high standards by authorizing, as Title II of the Higher Education Act (HEA), the Teacher Quality Enhancement Grants for States and Partnerships (Teacher Quality Programs). The new Teacher Quality Enhancement Grants Program provides an historic opportunity to effect positive change in the recruitment, preparation, licensing, and on-going support of teachers in America.

The new Teacher Quality Enhancement Grants Program consists of three different competitive grant programs: (1) The State Grants Program, which is designed to help States promote a broad array of improvements in teacher licensure, certification, preparation, and recruitment; (2) the Partnership Grants for Improving Teacher Preparation Program, which is designed to have schools of education, schools of arts and sciences, high-need local educational agencies (LEAs), and others work together to ensure that new teachers have the content knowledge and skills their students need of them when they enter the classroom; and (3) the Teacher Recruitment Grants Program, which is designed to help schools and school districts with severe teacher shortages to secure the high-quality teachers that they need. Together, these programs are designed to increase student achievement by supporting comprehensive approaches to improving teacher quality.

The State Grants Program offers a unique opportunity to support far-reaching efforts to redesign teacher education. Through the policy leadership of Governors, State legislatures, and other important partners, the program can assure the statewide support so essential to bringing about the important policy changes needed in teacher recruitment, preparation, licensing and certification, and retention. States are in the position to increase the expectations for newly state-certified and licensed teachers as well as test for and reward high-quality teaching.

Under the program, each State may develop a program application that focuses on activities it chooses to conduct in one or more areas that are key to improving the quality of new teachers. In this regard, areas in which a State may propose to focus include:

• Teacher licensure, certification, and preparation policies and practices, including rigorous alternative routes to certification;

• Reforms that hold institutions of higher education (IHE) with teacher preparation programs accountable for preparing teachers who are highly competent in academic content areas and possess strong teaching skills;

• Wholesale redesign of teacher preparation programs, in collaboration with the schools of arts and sciences, in ways that promote stronger academic content and subject-matter knowledge of students in those programs;

• Improved linkages between IHEs and K-12 schools, with more time spent by college faculty and teacher education students in K-12 classrooms, and greater use of technology in the teacher education programs;

• Use of new strategies to attract, prepare, support, and retain highly competent teachers in high-poverty urban and rural areas;

• Redesign and improvement of existing teacher professional development programs to improve the content knowledge, technology skills, and teaching skills of practicing teachers;

• Improved accountability for high-quality teaching through performance-based compensation and the expeditious removal of incompetent or unqualified teachers while ensuring due process; and

• Efforts to address the problem of social promotion and to prepare teachers to deal with the issues raised by ending social promotion.

The purpose of the Partnership Program is to improve student learning by bringing about fundamental change and improvement in traditional teacher education programs. Through multi-year awards to a limited number of highly-committed partnerships, the Partnership Program is intended to ensure that new teachers have the content knowledge and teaching skills they need when they enter the classroom. Section 203(a) and (b) of the HEA provides that partnerships eligible for awards must comprise, at a minimum, a partnership institution, a school of arts and science, and a high-need LEA as the law defines these terms. Partnerships also may include other entities that can contribute expertise, resources or both to the teacher preparation project. A key aspect of the program is the active participation of all members of the partnership in the design and implementation of project activities.

By law, successful applicants must propose to implement certain activities:

• The reform of teacher preparation programs so that these programs become accountable for producing teachers who are highly competent in the academic content areas in which they pan to teach;

• The provision of high quality and sustained pre-service clinical experiences and mentoring for new teachers, together with a substantial increase in the interaction between teachers, principals, and higher education faculty; and

• The creation of opportunities for enhanced and ongoing professional development that improves the academic content knowledge of teachers in fields in which they are or will be certified to teach.

Beyond these minimum requirements, the Partnership program supports activities that propose to educate teachers in ways that reflect best research and practice, and embody high teaching standards. These activities include the preparation of teachers to work with diverse student populations so that all students they will teach can achieve to high State and local content and performance standards, and implementation of instructional programs whose effectiveness has been demonstrated through research.

The Partnership Program also seeks to—

• Offer alternative routes into teaching to individuals who may have had careers in other professions, in the military or in other fields, and to educational paraprofessionals;

• Prepare teachers to successfully integrate technology into teaching and learning;

• Require prospective teachers to participate in intensive, structured, and clinically-based experiences with master teachers;

• Offer continuous assistance to graduates during their initial years in the classroom; and

• Prepare school principals, superintendents, and other school administrators to employ strong management and leadership skills that can help increase student achievement.

The Teacher Recruitment Program is designed to address the challenge of America's teacher shortage by making significant and lasting systemic changes to the ways that teachers are recruited, prepared, and supported as new teachers in high-need schools. The Teacher Recruitment Program supports projects that use funds to—

• Award scholarships to help students pay the costs of tuition, room, board, and other expenses of completing a teacher training program;

• Provide support services, if needed, to enable scholarship recipients to complete postsecondary education programs; and

• Provide for follow-up services to former scholarship recipients during their first three years of teaching.

Alternatively, funds may be used to develop and implement effective mechanisms to ensure that high-need LEAs and schools are able to effectively recruit highly qualified teachers.

Both States and eligible partnerships may receive awards under the Teacher Recruitment Program. For both States and partnerships, effective relationships and partnerships among all those who will implement project activities are keys to effective Teacher Recruitment Program activities. In particular, out of these partnerships and relationships will come (1) the recruitment strategies that are so vital to meeting the severe teaching needs of the high-need LEAs, (2) the kind of teacher preparation programs, which are built around effective support from both schools of education and schools of arts and science and other areas of the IHE, that recruited individuals will need in order to be effective teachers to the diverse student populations in those LEAs, and (3) the support services these individuals will need once they begin to teach.

The Teacher Recruitment Program also anticipates that projects will provide prospective teachers with high-quality teacher preparation and induction programs that—

• Set high standards for teaching;

• Reflect the best research and practice known across the country; and

• Prepare teachers to use technology in their classrooms.

Finally, all three of the Teacher Quality Enhancement Grant Programs anticipate that when program funding ceases, the work that States and partnerships have begun will continue and be sustained. Therefore, the ability of grantees to sustain activities after the end of the project is a key determinant of success.

Regulations are needed in order to establish appropriate selection criteria and a small number of other requirements for Fiscal Year (FY) 2000 and subsequent year competitions under the Teacher Quality programs. As explained in the following discussion, new program-specific selection criteria for competitions conducted under the three Teacher Quality Programs are needed to promote better quality applications and greater consistency among reviewers and across review panels.

On February 8, 1999, the Department published final regulations to govern competitions conducted under the Teacher Quality Enhancement Grant Programs for fiscal year (FY) 1999 (64 FR 6189). In doing so, the Department used its authority under section 437(d) of the General Education Provisions Act to waive rulemaking requirements for regulations governing the first grant competition under a new or substantially revised program. This notice of proposed rulemaking establishes the proposed regulations for the FY 2000 and subsequent year competitions.

The State, Partnership, and Teacher Recruitment Programs are key elements in the Federal government's strategy to support State efforts to improve teacher quality and recruit, prepare, and support new teachers in high-need schools and school districts. The success of these programs depends upon the preparation of applications that are of the highest possible quality, and the ability of reviewers to identify those applicants with the most promise of success. In order to guide the preparation and identification of high-quality applications under any of these three Programs, application selection criteria need to be established.

As a new program in FY 1999, the Teacher Quality Program relied upon general selection criteria in § 75.210 of the Education Department General Administrative Regulations (EDGAR) to evaluate applications submitted under the State and the Teacher Recruitment Programs. The EDGAR criteria were used for these two programs because we believed that program-specific regulations would not be needed to generate high-quality applications and permit reviewers a ready means to evaluate them. However, those reviewing applications under these programs found that, notwithstanding guidance in the program application packages on what high-quality applications likely would contain, submitted applications generally not only lacked sufficient specificity, but also were difficult to evaluate under these general selection criteria.

Hence, the Department's experience with applications submitted under the State and Teacher Recruitment Programs now convinces us that program-specific criteria—rather than those in EDGAR—would assist applicants to write better, more specific proposals that focus more closely on how they would address Title II program goals. We also are convinced that the use of program-specific selection criteria in these two programs would substantially help reviewers to make better judgments as they read, score proposals, and make evaluative comments. Regulations therefore are needed to establish program-specific criteria that reflect the goals and objectives of the Title II statute.

The Department did use program-specific selection criteria rather than general criteria in EDGAR to evaluate both pre-applications and full applications submitted for the initial competition conducted in FY 1999 under the Partnership Program. However, difficulties that reviewers had evaluating those pre-applications and full applications have convinced us that they, too, need to be modified. We now see that, in some respects, those criteria were too general. They helped applicants to sketch a broad vision of their projects, but reviewers often had difficulty finding enough specific detail in the pre-applications and full applications to score them with precision. Reviewers also found that the generality of the program-specific criteria inhibited their ability to make fine distinctions among applications. We believe that revised, more specific, selection criteria for the Partnership Program are needed to improve the quality of applications and the review process.

For the FY 2000 Title II competition, therefore, new program-specific selection criteria have been drafted for all three Teacher Quality Program components. It is expected that these new criteria will provide clearer guidance to proposal writers, and will give reviewers a more reliable scoring system. By using the revised selection criteria, the complete selection process should result in funding strong projects likely to achieve key Title II goals. (Consistent with § 75.210 of EDGAR, the application packages for these three programs will inform the public the total possible score for all criteria that apply to a program, and the assigned weight or maximum possible score for all criteria that apply to a program, and the assigned weight or maximum possible score for each criterion or factor under that criterion).

Finally, regulations are needed in two other areas. First, all three programs require applicants to develop strategies in comprehensive areas related to teacher preparation, licensure, certification, or recruitment. The experience with the initial grants competition conforms that both reviewers and successful applicants would benefit from having applications include detailed workplans that contain project objectives, activities, benchmarks, responsible parties, time lines, and outcomes. In addition, regulations are needed to clarify over what period of time States are to meet the 50 percent matching requirement in section 205(c) of the statute.

The remainder of this section of this notice explains in more detail the regulations that we are proposing to adopt for the three Teacher Quality Enhancement Grant Programs.

Under § 611.2, an applicant for a grant under the Teacher Quality Enhancement Grants Program would be required to submit with its application a proposed multiyear workplan. At a minimum, the applicant would have to specifically identify, for each year of the project, the project's overall objectives, activities the applicant proposes to implement to promote each program objective, benchmarks and time lines for conducting project activities and achieving the project's objectives, who would be responsible for conducting and coordinating each activity, measurable program outcomes that are tied to each program objective, and the evidence by which success in achieving these objectives would be measured. Applicants for grants under subpart C (the Partnership Program) and subpart D (the Teacher Recruitment Program) would only have to provide a workplan if they are invited, based on their pre-applications, to submit a full application.

Finally, § 611.2 would also require any applicant that submits a pre-application for a grant under the Partnership or Teacher Recruitment Program to submit any budgetary information that the Secretary may require in the program's application package.

These workplans are necessary for two reasons. Section 75.112(b) of EDGAR requires all applicants to include a narrative that describes how and when, for each budget year of the project, the applicant plans to meet each project objective. However, for the 1999 grants competition, the submitted applications did not contain the specificity that reviewers desired for making the most informed decisions about the quality of applicants' multiyear plans. This regulation is needed both to address this problem and to ensure that, for those applicants receiving awards, the Department has the information it needs to work with applicants over the life of their projects so that the projects can succeed.

Section 611.3 sets out the procedures that we would use to select grants for the Teacher Quality Program. In general, we would use the procedures in 34 CFR 75.200-75.222. However, § 611.3 would establish our use of program-specific selection procedures identified in §§ 611.12-611.32 to evaluate applications for each of the three programs, including the use of a competitive priority for the State and Partnership Programs.

In addition, § 611.3 would establish a two-stage application process for both the Partnership and Teacher Recruitment Programs. The proposed regulations would require applicants under either of these Programs to submit a pre-application. We would use the selection criteria established for these pre-applications to determine which applicants should be invited to submit full applications.

A two-stage process was used successfully during the 1999 initial competition under the Partnership Program. We received substantial feedback from applicants who favored this process. They told us that it permitted them to spend more time planning their projects than they would have had under the normal, single-stage, process, and saved those applicants whose pre-applications were not of sufficiently high quality the time and resources needed to prepare a full program application. We also believe that the quality of the full applications likely benefited from the applicants' receipt of reviewers' comments on their pre-applications, and reviewers told us that they appreciated being able to focus their time evaluating a limited number of full applications that reflected sound conceptual thinking. Therefore, we have decided to make the pre-application process a permanent feature of the Partnership Program.

In addition, reviewers of applications submitted under the initial Teacher Recruitment Program grants competition found that many applications lacked the vision and specificity that the Program needs. Given the importance of successful Teacher Recruitment Program projects, we believe that the quality of applications for these projects likewise would be enhanced by use of a pre-application process. For this reason, we are proposing to use this two-step process for both the Partnership and Teacher Recruitment Programs.

In the event that two or more applicants are ranked equally for the last available award under any of the three programs, the proposed regulations would continue a tie-breaking procedure used during the FY 1999 competition. Under this procedure, the Secretary would select the applicant whose activities would focus (or have the most impact) on LEAs and schools located in one (or more) of the Nation's Empowerment Zones and Enterprise Communities.

Finally, for the initial grant competition under these three programs, we developed program-specific selection criteria only for the Partnership Program. For reasons discussed in the “Need to Regulate” section of this preamble, we are proposing program-specific selection criteria for applications submitted under the State and Teacher Recruitment Program, and revised program-specific criteria for applications submitted under the Partnership Program.

Section 611.11 would establish the selection criteria for the State Program. The criteria would focus on the quality of the project design, the significance of the project, the quality of the resources, and the quality of the management plan and workplan. Section 611.12 would establish selection criteria, which would be used in addition to the selection criteria in § 611.11, for any State Program applicant that proposed teacher recruitment activities. Although teacher recruitment is not required for the State Program, applicants may choose to incorporate teacher recruitment into their projects. If they do so, additional selection criteria would be needed because of the requirements governing use of funds for teacher recruitment activities in sections 202 and 204(d) of the HEA. We therefore have added selection criteria that would specifically address teacher recruitment, so that peer reviewers can judge the quality of the teacher recruitment activities within a State program.

Section 611.13 would establish a competitive preference for the State Program. As required by section 205(b)(2)(A) of the HEA, the Secretary would determine the extent to which the State's proposed activities in any one or more of three statutory priorities are likely to yield successful and sustained results. The statutory priorities are (1) initiatives to reform State teacher licensure and certification requirements so that current and future teachers possess strong teaching skills and academic content knowledge in the subject areas they will be certified or licensed to teach; (2) innovative reforms to hold IHEs with teacher preparation programs accountable for preparing teachers who are highly competent in the academic content areas and have strong teaching skills, and (3) innovative efforts to reduce the teacher shortage (including the high turnover) of highly competent teachers in high-poverty urban and rural areas.

Section 611.21 would establish the selection criteria for the pre-application for the Partnership Program. The selection criteria would address project goals and objectives, the level of commitment to the partnership, the quality of key project components, and the anticipated specific outcomes of the project. As with the State Program, because of the requirements governing use of funds for teacher recruitment activities in sections 203 and 204(d) of Title II, the Partnership Program, in § 611.22, would establish additional criteria that would apply to any pre-application that proposes teacher recruitment activities.

Sections 611.23 and 611.24 would establish the selection criteria for the full application. Section 611.23 would apply to all applicants for Partnership program grants, and § 611.24 would apply to those applications that include teacher recruitment activities. The selection criteria for full applications are similar to those we used to evaluate applications in 1999 for the initial competition under the program. They focus on quality of project design, significance of project activities, quality of resources, and the quality of the management plan and workplan.

As required by section 205(b)(2)(B) of the statute, § 611.25 would establish a competitive preference for Partnership Program applications that involve businesses. Under this section, the Secretary would award up to ten additional points on the basis of how well the application includes a significant role for private business in the design and implementation of the project.

Sections 611.31 and 611.32 would establish the selection criteria for the pre-application and the full application, respectively. The selection criteria for pre-applications would address the same general areas as those for Partnership Program pre-applications, but would be tailored to matters related to teacher recruitment. Similarly, the selection criteria to govern full applications submitted under the Teacher Recruitment Program would address the same general areas as those for the State Program, but would be tailored to matters related to teacher recruitment.

Section 611.61 would limit the indirect costs that a recipient may charge to Teacher Quality Program funds to the maximum of either eight percent or the amount determined through operation of a negotiated indirect cost rate. We are proposing this regulation so that the indirect cost limitation is applicable to all recipients of program funds. By regulation published in the Federal Register on August 6, 1999 (64 FR 42837), this limitation (formerly established in § 611.41) already applies to States and LEAs. Regulations published in the Federal Register on February 8, 1999 (64 FR 6189) applied this same indirect cost limitation to IHEs and nonprofit organizations that receive program funds on the basis of the initial Teacher Quality Program grant competitions. However, through an oversight, the Department had not previously proposed to apply this limitation on indirect costs to IHEs and nonprofit agencies and that receive program funds under the second and succeeding grant competitions.

We recognize the legitimacy of a grant recipient's indirect costs. However, for reasons presented in the May 19, 1999 NPRM that proposed this indirect cost limitation for States and LEAs (64 FR 27403), we believe that having IHEs and nonprofit organizations apply large, generally applicable negotiated indirect cost rates to compensate themselves out of program funds for general overhead and related expenses is inconsistent with the purpose of the Teacher Quality Programs and the expectations that Congress and the Nation have for their success. Therefore, given (1) the privotal significance of the Teacher Quality Programs, (2) the national need that these programs have a maximum impact on the quality and quantity of highly-qualified new teachers, and (3) the fact that these programs are competitive, the Secretary has determined that a reasonable limitation on the indirect cost rate that IHEs and nonprofit organizations may charge to their Teacher Quality Program funds is appropriate. Section 611.61 would make all recipients of program funds—States, LEAs, IHEs, nonprofit organizations, and other entities—subject to the same limitation on indirect costs they may charge to program funds.

Finally, § 611.62 would detail a grantee's matching requirements. As required by section 205(c)(1) of the statute, each State receiving a grant under either the State Program or the Teacher Recruitment Program would have to provide, from non-Federal sources, an amount equal to 50 percent of the amount of the grant to carry out the activities supported by the grant. Section 611.52(a) would clarify that the 50 percent match would need to be made annually during the project period, with respect to each grant a State receives. In addition, § 611.52(b) repeats the requirement in section 205(c)(2) of the statute that each partnership receiving a grant under the Partnership Program or the Teacher Recruitment Program be required to provide, from non-Federal sources, an amount equal to 25 percent of the grant for the first year of the program, 35 percent of the grant for the second year of the program, and 50 percent of the grant for the third through fifth year of the program.

We interpret these requirements, that grantees provide each year a specified percentage “of the grant” from non-federal sources, to mean a specified percentage of the amount of the federal funds the Department annually awards. Therefore, for example, a partnership that is awarded $1 million per year in federal funds would need to provide the project $250,000 from non-federal funds for the first year of project activities. The required match from non-Federal sources required by this section could be made in cash or in kind.

The Goals 2000: Educate America Act (Goals 2000) focuses the Nation's education reform efforts on the eight National Education Goals and provides a framework for meeting them. Goals 2000 promotes new partnerships to strengthen schools and expands the Department's capacities for helping communities to exchange ideas and obtain information needed to achieve the goals.

These proposed regulations would address the National Education Goal that the Nation's teaching force will have the content knowledge and teaching skills needed to instruct all American students for the next century.

Executive Order 12866 and the President's Memorandum of June 1, 1998 on “Plain Language in Government Writing” require each agency to write regulations that are easy to understand.

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

• Are the requirements in the proposed regulations clearly stated?

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

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

• Would the proposed regulations be easier to understand if we divided them into more (but shorter) sections? (A “section” is preceded by the symbol “§” and a numbered heading; for example, § 611.21 What are the selection criteria for pre-applications? )

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

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

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

The Secretary certifies that these proposed regulations would not have a significant economic impact on a substantial number of small entities. Entities that would be affected by these regulations are IHEs and LEAs. The information burden on each of these groups consists only of the time and resources needed to submit grant applications. Hence, the regulations would not have a significant impact on any entity because they would not impose excessive regulatory burden or require unnecessary Federal supervision.

Proposed §§ 611.2-611.25 contain information collection requirements. Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the Department of Education has submitted a copy of this notice and these sections to the Office of Management and Budget (OMB) for its review.

Teacher Quality Enhancement Grant Programs.

Applicants for funds under the State Grants program, the Partnership Program for Improving Teacher Effectiveness, and the Teacher Recruitment Grants Program would need to submit program applications and, for the Partnership Program and Teacher Recruitment Program, pre-applications that respond to the selection criteria announced in this notice. Applicants also would need to include a detailed workplan with their applications.

We collect information once for applicants for State Program grant awards. We estimate annual reporting and recordkeeping burden for this collection of information to average 200 hours for each application for 20 State respondents, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Thus, we estimate the total annual reporting and recordkeeping burden for this collection on those preparing application under the State Program to be 4,000 hours.

For both the Partnership Program and Teacher Recruitment Program, all applicants must submit a pre-application; those with the highest quality pre-applications would then be invited to submit full applications. We estimate annual reporting and recordkeeping burden for this collection of information to average 54 hours for each of the 150 respondents expected to submit pre-applications under the Partnership Program, and 54 hours for each of the 150 respondents expected to submit pre-applications under the Teacher Recruitment Program. These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Thus, we estimate the total annual reporting and recordkeeping burden related to the preparation of pre-applications to be 8,100 hours for each of the two programs, or a total of 16,200 hours.

We estimate that of those applicants who submitted pre-applications for Partnership Program and Teacher Recruitment Program grant awards, 25 under each program will be invited to submit full program applications. We estimate annual reporting and recordkeeping burden for this collection of information to average 200 hours for each of the applications, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Thus, we estimate the total annual reporting and recordkeeping burden for this collection on those preparing application under the Partnership Program to be 5,000 hours, and under the Teacher Recruitment Program also to be 5,000 hours.

Finally, as discussed in the preceding discussion, we estimate that the total annual reporting and recordkeeping burden for this collection as it relates to all three Teacher Quality Enhancement Grant Programs to be 30,200 hours. This estimate includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

If you want to comment on the information collection requirements, please send your comments to the Office of Information and Regulatory Affairs, OMB, room 10235, New Executive Office Building, Washington, DC 20503; Attention: Desk Officer for U.S. Department of Education. You may also send a copy of these comments to the Department representative named in the ADDRESSES section of this preamble.

We consider your comments on this proposed collection of information in—

• Deciding whether the proposed collection is necessary for the proper performance of our functions, including whether the information will have practical use;

• Evaluating the accuracy of our estimate of the burden of the proposed collection, including the validity of our methodology and assumptions;

• Enhancing the quality, usefulness, and clarity of the information we collect; and

• Minimizing the burden on those who must respond. This includes exploring the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses.

OMB is required to make a decision concerning the collections of information contained in these proposed regulations between 30 and 60 days after publication of this document in the Federal Register. Therefore, to ensure that OMB gives your comments full consideration, it is important that OMB receives the comments within 30 days of publication. This does not affect the deadline for your comments to us on the proposed regulations.

Requests for copies of the proposed application packages for any or all of the Teacher Quality Programs may be accessed from http://edicsweb.ed.gov, or should be addressed to Vivian Reese, Department of Education, 400 Maryland Avenue, SW, Room 5624, Regional Office Building 3, Washington, D.C. 20202-4651. Requests may also be electronically mailed to the Internet address OCIO_IMG_Issues@ed.gov or faxed to 202-708-9346.

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

This document is intended to provide early notification of our specific plans and actions for this program.

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

You may review this document, as well as all other Department of Education documents published in the Federal Register, in text or Adobe Portable Document Format (PDF) on the Internet at either of the following sites: http://ocfo.ed.gov/fedreg.htm; http://www.ed.gov/news.html. To use the PDF you must have the Adobe Acrobat Reader Program with Search, which is available free at either of these sites. If you have questions about using the PDF, call the U.S. Government Printing Office (GPO) at 1-888-293-6448, or in the Washington, DC area at (202) 512-1530.

For the reasons stated in the preamble, the Secretary proposes to amend part 611 of Chapter VI of title 34 of the Code of Federal Regulations as follows:

When is a television station a network station? That is the question for which Paxson Communications Corp. (“Paxson”) has petitioned the Copyright Office for an answer and to which this rulemaking proceeding is directed.

The cable statutory license of the Copyright Act, 17 U.S.C. 111, provides a licensing regime for the retransmission of broadcast stations by cable systems. Whether a particular station is a “network” station or not is critical to the calculation of royalty payments by cable systems for retransmission of that station because the cable statutory license only gathers royalties for the retransmission of nonnetwork broadcast programming. In applying the royalty payment formula, cable systems pay a full distant signal equivalent (“DSE”) for retransmission of an independent, nonnetwork station because it is presumed that all the programming contained on the signal of that station is not network-provided programming. However, cable systems must only pay one-quarter of a DSE for retransmission of a network station, because it is presumed that only one-quarter of the programming contained on the signal of a network station is nonnetwork programming. Consequently, as a general principle, a cable system can carry four network stations for the cost of one independent station. 1 This distinction in the classification of stations is important to both cable systems and copyright owners: cable systems, because it affects their costs; and copyright owners because it determines how much money will be in the cable royalty pool.

Whether a station is a “network station” also affects matters related to cable carriage. Most cable systems throughout the United States have filled their quotas of permitted distant signals. If a new independent station seeks carriage on a typical cable system, such carriage will trigger the 3.75% royalty fee for nonpermitted distant signals which cable systems are reluctant to pay. Consequently, the signal will not be carried. However, if the station is designated as a network station, carriage of the station becomes considerably more attractive to a cable system because the associated royalty fees are considerably lower.

The issue of what is a network station has arisen intermittently through the years on an informal basis. When the Copyright Act passed in 1976, it was clear that the only stations that qualified as network stations under the section 111 license were those owned and operated, or affiliated with, the “Big 3” networks: ABC, CBS, and NBC. The Copyright Office received several informal inquiries from cable systems during the early 1990's regarding the status of the Fox network, but the Office declined to rule that Fox was a network for purposes of the section 111 license. Paxson is the first broadcaster to come forward and formally petition the Office for a ruling.

Section 111(f) of title 17 contains the statutory definition of a network station. It provides:

Examination of this definition reveals that there are three critical elements to the qualification of a broadcast station as a network station. The broadcast station must be owned and operated by, or affiliated with, one or more of the U.S. television networks that provide nationwide transmissions; must transmit a substantial portion of the programming supplied by the network; and the programming supplied by the network must constitute a substantial portion of the station's typical broadcast day. There has never been any question that stations of the Big 3 networks satisfy these requirements, and the Copyright Office has always treated a station of one of these networks as a network station for purposes of section 111.

Nevertheless, the specific meaning of these three elements is far from clear. For example, what are “nationwide” transmissions? Does there have to be a station of a particular “network” in every state or television market in order to qualify that organization as a network, or is something less than that sufficient? What constitutes transmitting a “substantial” portion of the programming offered by a network? Is fifty percent enough, or is more or less required? Does the programming supplied by the network have to be first-run or original programming, or is syndicated programming permissible? What constitutes a “substantial” portion of a station's typical broadcast day? It is these questions, and the ones described below, to which the Copyright Office seeks public comment in this Notice of Inquiry.

Paxson provides television programming over the PaxTV Television Network (“PaxTV”) to over sixty owned and operated and affiliated television broadcast stations. According to Paxson, its owned and operated and affiliate stations satisfy all three of the criteria for a “network station” under section 111.

First, Paxson submits that PaxTV is a television network because it provides nationwide transmissions of PaxTV programming. PaxTV is carried on stations in 34 states and the District of Columbia, all of which are either owned and operated by, or are primary affiliates of, PaxTV.

Second, Paxson asserts that its stations carry a substantial portion of the programming provided by PaxTV because its contracts with these stations require that PaxTV programming be broadcast a minimum of 18 hours daily. And third, as a result of this requirement, Paxson submits that each of its stations meets the requirement of transmitting PaxTV programming for a “substantial part” of each station's “typical broadcast day.”

In addition to meeting the three criteria, Paxson notes that the Copyright Office has previously stated that, in addition to the Big 3, there could be a fourth network for purposes of the section 111 license provided that the statutory criteria were met. Letter from Dorothy Schrader, General Counsel, to Thomas Hendrickson (November 13, 1981). Paxson also cites a passage from the 1976 House report accompanying the Copyright Act as further proof that networks in addition to the Big 3 were contemplated under section 111:

In conclusion, Paxson requests that the Copyright Office declare that stations owned and operated by, or affiliated with, PaxTV be declared network stations under section 111, and that cable systems carrying PaxTV stations be permitted to report and pay for such stations as network stations.

Since the implementation of the section 111 license in 1978, the Copyright Office has treated a broadcast station that is owned and operated by, or affiliated solely with, one of the Big 3 networks as a “network station” for section 111 purposes. All other stations have been treated as independents, including those that have dual affiliations with broadcasters other than the Big 3.  2 As a matter of policy, the Office has never questioned the network status of a broadcast station identified as a CBS, ABC, or NBC station. It has always been assumed that such a station automatically took a substantial portion of the network's programming and that that programming made up a substantial portion of the station's typical broadcast day. There could be cases, however, where such a station does not take a sufficient amount of network programming. The Office has never inquired and has accepted the delineation of network station at face value for stations in the CBS, ABC, and NBC networks. It appears now that with the changing television marketplace, and with the petition of Paxson, the Office must reevaluate its approach before it can declare whether there are any new networks and network stations.

To that end, the Office is opening this rulemaking proceeding to consider what makes a broadcast station a “network station” for purposes of section 111. As noted above, there are considerable questions related to the three criteria of the definitional provision which require resolution before the Office can determine whether there are more or less network stations under section 111. The first criterion of the definition focuses on the status of the television network, as opposed to that of the individual station. In order for there to be a television network, there must be nationwide transmissions by stations associated with that network. What is the meaning of “nationwide'? Does it mean coverage in a certain number of television markets, or is it solely a geographical matter? For example, would coverage of the top twenty television markets constitute “nationwide” transmissions because cities on both coasts and a portion of the interior of the United States are covered? Or does “nationwide” mean greater, or perhaps even less, coverage? Does the section 119 definition of a network station, which provides that the network must offer an interconnected program service with at least 15 hours per week of network programming to at least 25 stations in 10 or more states, offer any guidance, and, if so, on what grounds?

The second and third criteria refer to the individual station and both contain the word “substantial.” The second criterion states that the broadcast station must transmit a substantial part of programming supplied by the network. The obvious question is, what is a “substantial” amount? Is it 50 percent, or something more or perhaps even less? The definition of a “full network station” in the Federal Communications Commission's 1976 cable rules provides that a full network must transmit 85 percent of the weekly prime time hours offered by the network. 47 CFR 76.5. Does this provision offer any guidance, and, if so, on what grounds?

The third criterion provides that the amount of network programming taken by the station must constitute a “substantial” portion of the station's typical broadcast day. Once again, what does “substantial” mean? Can some percentage or number of hours be determined to provide a bright-line test as to what is substantial and what is not? Furthermore, can a station which carries all or most of the prime time programming offered by a network satisfy the “substantial” requirement, regardless of what it carries at other hours of the day?

If, after reviewing the responses to these questions, the Copyright Office is able to fashion a test for determining when a particular station is a network station, how should such a test be implemented? Can the Office continue to assume that a station that is solely affiliated with, or owned and operated by, one of the Big 3 networks is still a network station for section 111 purposes, or will such stations be required to individually satisfy the new test? If the latter, how should the Office implement the test, and to what extent should broadcasters and cable operators have input as to the determination?

Finally, there is the matter of the Paxson petition, which is the source of this rulemaking proceeding. We do not believe that the question of PaxTV's network status can be reached until a method for determining when a station is a network station is established. Nevertheless, the Paxson petition is useful to creating such a methodology, and PaxTV stations will undoubtably be the first to which the new regulation is applied. The Office has already identified above the number of hours of network programming carried daily by PaxTV stations. The Appendix to this Notice contains a list (provided by Paxson) identifying the stations of the Paxson network, their market location, and Paxson's ownership interest. Commenters are encouraged to use this information in addressing the fundamental issue of when is a television station a network station.

In addition, after rules have been adopted for determining network station status, there is the matter of how the Office should treat other putative broadcast networks, such as the Fox, United Paramount, and Warner Brothers networks? One possible approach is a case-by-case basis whereby each of these networks is afforded the opportunity to petition the Office for a determination of network status, such as Paxson has done. Is this appropriate, or should cable operators who carry such stations be allowed to petition the Office as well? Must each petition be addressed through a notice and comment rulemaking proceeding, or is there some other procedure that is permissible or desirable?

The Office encourages responses to the questions posed in this Notice of Inquiry, as well as any other comments relevant to the issues raised.

EPA is developing proposed effluent limitations guidelines and standards for the MP&M Point Source Category under authority of the Clean Water Act (33 U.S.C. 1251 et. seq.). The MP&M effluent limitations guidelines and standards proposal will apply to facilities that manufacture, rebuild, or maintain finished metal parts, products, or machines. The 18 industrial sectors which are being examined for the MP&M regulation include the following: Aerospace; Aircraft; Bus & Truck; Electronic Equipment; Hardware; Household Equipment; Instruments; Metal Finishing and Electroplating Job Shops; Mobile Industrial Equipment; Motor Vehicles; Office Machines; Ordnance; Precious and Non-precious Metals; Railroad; Ships & Boats; Stationary Industrial Equipment; Printed Circuit Boards; and Other Metal Products. The meeting will provide an update on the development of the proposed rule to interested parties. EPA will provide an overview of the development of the regulation including a discussion of the data collection efforts, the potential treatment technology options, the potential subcategorization of industry segments, and the schedule for the MP&M rulemaking. The meeting will not be recorded by a reporter or transcribed for inclusion in the record for the MP&M rulemaking.

Documents related to the topics mentioned above and a more detailed agenda will be available at the meeting. For those unable to attend the meeting, a document summary will be available following the meeting and can be obtained by an e-mail or telephone request to Shari Barash at the previously mentioned address.

In the 2 GHz MSS Notice, the Commission sought comment on four spectrum assignment methodologies that could accommodate all nine Mobile Satellite Service (MSS) systems proposed in the 1990-2025/2165-2200 MHz frequency bands (2 GHz MSS). 1 The first is a “flexible band arrangement,” in which the Commission would grant each proposed system 2.5 MHz in uplink and downlink spectrum, group systems in segments based on the particular technology used, and provide expansion spectrum between the assigned segments for additional system requirements. 2 In the second option, called the “negotiated entry” approach, the Commission would license all proposed systems across the entire band and allow the operators themselves to coordinate their operations, with the Commission being available to resolve disputes. 3 In the third proposal, the “traditional band arrangement,” the Commission would divide the spectrum equally and assign or designate the spectrum blocks to the proposed systems using system design as a function of spectrum allocation ( i.e., a CDMA-NGSO block, a TDMA-GSO block, etc.). 4 The fourth option proposed to auction licenses in the event that none of the preceding three options is viable. 5 The Commission also reserved the option of adopting a hybrid solution arising from the options described. 6

The Commission received significant comment on the four proposed methodologies. By this Public Notice, the International Bureau seeks to augment the record on certain issues not directly addressed by commenters. Specifically, we seek additional comment on a hybrid processing alternative, combining elements of the traditional band arrangement with the negotiated entry approach. This new alternative is intended to provide incentives for MSS operators to expedite implementation of their systems, while maximizing their flexibility during the incumbent relocation process. 7

In this alternative methodology, the Commission would subdivide the 2 GHz MSS uplink and downlink bands into distinct segments of equal bandwidth, with each segment representing an operator's “home” spectrum assignment in the band. Rather than assigning each segment according to system design, as proposed in the traditional band arrangement, each operator would be permitted to select from the then-available spectrum segments by submitting a request for its desired assignment once the first satellite in its system reaches its intended orbit. This mechanism is designed to provide market-based incentives for MSS operators to implement service quickly, since early entry may determine whether a system can choose its preferred “home” segment.

In addition to authorizing each system to a “home” spectrum segment, the Commission would authorize each satellite operator to provide service anywhere in the 2 GHz MSS spectrum, subject to inter-system coordination. In this regard, this part of the proposal is similar to the negotiated entry approach proposed in the 2 GHz MSS Notice . The primary differences, however, are that under the new approach, operators would be permitted to use spectrum outside their “home” assignment only on a secondary basis with respect to other MSS operators, and an operator's total spectrum use would be limited to the same amount of spectrum that is authorized in the “home” segment. In the event that a later entrant selects spectrum for its “home” assignment that is being used by an earlier entrant, the earlier entrant would be required to move to other available spectrum or return to its “home” spectrum assignment. This part of the proposal is designed to allow systems to begin providing service in any available frequencies of the 2 GHz MSS band during the incumbent relocation process, and facilitate inter-system coordination in the band when later systems implement.

We seek comment on these modifications to the traditional band arrangement and negotiated entry approach, and on implementing this hybrid spectrum assignment methodology. We also seek comment on whether these modifications would serve the public interest by providing additional incentives for MSS operators to expedite implementation of their systems.

Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file Supplemental Comments limited to the issues addressed in this Public Notice no later than February 17, 2000. In view of the pendency of this proceeding, we expect to adhere to the schedule set forth in this Public Notice and do not contemplate granting extensions of time. Supplemental Comments should reference IB Docket No. 99-81 and should include the DA number shown on this Public Notice. Supplemental Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). 8 Supplemental Comments filed through the ECFS can be sent as an electronic file via Internet to http://www.fcc.gov/e-file/ecfs.html. In completing the transmittal screen, parties responding should include their full name, mailing address, and the applicable docket number, IB Docket No. 99-81.

In the 2 GHz MSS Notice, the Commission presented an Initial Regulatory Flexibility Analysis, 9 as required by the Regulatory Flexibility Act (RFA). 10 If commenters believe that the proposals discussed in this Public Notice require additional RFA analysis, they should include a discussion of these issues in their Supplemental Comments.

For ex parte purposes, this proceeding continues to be a “permit-but-disclose” proceeding, in accordance with § 1.1200(a) of the Commission's rules, and is subject to the requirements set forth in § 1.1206(b) of the Commission's rules.

For further information, please contact: Chris Murphy, Satellite Policy Branch, (202) 418-2373, or Howard Griboff, Satellite Policy Branch, at (202) 418-0657.

The Ohlone tiger beetle ( Cicindela ohlone ) is a member of the Coleopteran family Cicindelidae (tiger beetles), which includes over 2,000 species worldwide and over 100 species in the United States (Pearson and Cassola 1992). Tiger beetles are day-active, predatory insects that prey on small arthropods. Because many tiger beetles often feed on insect species that are injurious to man and crops, they are regarded as beneficial (Pearson and Cassola 1992; Nagano 1982). Adult tiger beetles are medium-sized, elongate beetles characterized by their usually brilliant metallic green, blue, red, and yellow coloration highlighted by stripes and spots. Adults are ferocious, swift, and agile predators that seize small prey with powerful sickle-shaped jaws.

Tiger beetle larvae are also predatory. They live in small vertical or slanting burrows from which they lunge and seize passing invertebrate prey (Essig 1926; Essig 1942; Pearson 1988). When a prey item passes near a burrow, the larva grasps the prey with its strong mandibles (mouthparts) and pulls it into the burrow, and once inside the burrow, the larva will feed on the captured prey (Essig 1942; Pearson 1988). Tiger beetles share similar larval body forms throughout the world (Pearson and Cassola 1992). The larvae, either white, yellowish, or dusky in coloration, are grub-like and fossorial (subterranean), with a hook-like appendage on the fifth abdominal segment that anchors the larvae inside their burrows.

Tiger beetle larvae undergo three instars (larval development stages). This period can take 1 to 4 years, but a 2-year period is the most common (Pearson 1988). After mating, the tiger beetle female excavates a hole in the soil and oviposits (lays) a single egg (Pearson 1988; Kaulbars and Freitag 1993; Grey Hayes, University of California, Santa Cruz, pers. comm. 1998). Females of many species of Cicindela are extremely specific in choice of soil type for oviposition (egg laying) (Pearson 1988). It is not known at this time how many eggs the Ohlone tiger beetle female lays, but other species of Cicindela are known to lay between 1 and 14 eggs per female (mean range 3.7 to 7.7), depending on the species (Kaulbars and Freitag 1993). After the larva emerges from the egg and becomes hardened, it enlarges the chamber that contained the egg into a tunnel (Pearson 1988). Before pupation (transformation process from larva to adult), the third instar larva will plug the burrow entrance and dig a chamber for pupation. After pupation, the adult tiger beetle will dig out of the soil and emerge. Reproduction may either begin soon after emergence or be delayed (Pearson 1988).

Tiger beetles are a well-studied taxonomic group with a large body of scientific literature; the journal Cicindela is devoted exclusively to tiger beetles. Scientists have studied the diversity and ecological specialization of tiger beetles, and amateur collectors have long been attracted by their bright coloration and swift movements. Tiger beetle species occur in many different habitats including riparian habitats, beaches, dunes, woodlands, grasslands, and other open areas (Pearson 1988; Knisley and Hill 1992). A common habitat component appears to be open sunny areas for hunting and thermoregulation (an adaptive behavior to use sunlight or shade to regulate body temperature) (Knisley et al . 1990; Knisley and Hill 1992). Individual species of tiger beetle are generally highly habitat-specific because of oviposition and larval sensitivity to soil moisture, composition, and temperature (Pearson 1988; Pearson and Cassola 1992; Kaulbars and Freitag 1993).

The Ohlone tiger beetle is endemic to Santa Cruz County, California, where it is known only from coastal terraces supporting remnant patches of native grassland habitat. Specimens of this species were first collected northwest of the City of Santa Cruz, California, in 1987, and were first described in 1993 (Freitag et al . 1993). Both male and female specimens have been collected.

The adult Ohlone tiger beetle is a relatively small beetle measuring 9.5 to 12.5 millimeters (mm) (0.37 to 0.49 inches (in)) long. The adults have large, prominent eyes and metallic green elytra (leathery forewings) with small light spots (Freitag et al . 1993). Their legs are long, slender, and coppery-green. Freitag et al . (1993) describe features that distinguish this species from closely related species of Cicindela purpurea and other purpurea group taxa.

Two principal distinguishing features of the Ohlone tiger beetle are its early seasonal adult activity period and its disjunct distribution. While other tiger beetle species, such as Cicindela purpurea , are active during spring, summer, or early fall (Nagano 1982; Freitag et al . 1993), the Ohlone tiger beetle is active from late January to early April (Freitag et al . 1993). The Ohlone tiger beetle is the southernmost of purpurea group species in the Pacific coast region; its distribution is allopatric (geographically separated) to those of similar species (Freitag et al . 1993).

Ohlone tiger beetle larvae are currently undescribed. However, tiger beetle burrows, measuring 4 to 6 mm in diameter (0.16 to 0.23 in), were found in the same habitat areas where adult Ohlone tiger beetles were collected (David Kavanaugh, California Academy of Sciences, pers. comm. 1997; V. Cheap, in litt. 1997). The surface openings of these burrows are circular and flat with no dirt piles or mounds surrounding the circumference (Kim Touneh, Service, pers. obs. 1997). These burrows are similar to larval burrows belonging to other tiger beetle species. Larvae and inactive adults have been excavated from these burrows, and the inactive adults collected from these burrows were fully mature and easily identified as Ohlone tiger beetles (D. Kavanaugh, pers. comm. 1997; V. Cheap, in litt . 1997). Based on these collections, Kavanaugh (pers. comm. 1997) concluded that the larvae found in these burrows were Ohlone tiger beetle larvae. Further investigations of these recently collected larvae are being conducted to scientifically characterize and document the morphology of the Ohlone tiger beetle larvae (D. Kavanaugh, pers. comm. 1997).

Ohlone tiger beetle habitat is an open native grassland, with California oatgrass ( Danthonia californica ) and purple needlegrass ( Stipa pulchra ), on level or nearly level slopes. The substrate is shallow, pale, poorly drained clay or sandy clay soil that bakes to a hard crust by summer, after winter and spring rains cease (Freitag et al . 1993). Ohlone tiger beetle habitat is associated with specific soil types in Santa Cruz County, either Watsonville loam or Bonnydoon soil types. Soil core analyses were conducted for three out of the five known population sites; the soil types for these three sites were determined to be either Watsonville loam or Bonnydoon (Richard Casale and Ken Oster, U.S. Department of Agriculture, Natural Resources Conservation Service, pers. comm. 1997).

Adult Ohlone tiger beetles have been observed in remnant patches of native grassland on coastal terraces where bare areas occur among low or sparse vegetation. Trails ( e.g., foot paths, dirt roads, and bicycle paths) are also used. When disturbed, adults will fly to more densely vegetated areas (Freitag et al . 1993; Richard Arnold, private consultant, pers. comm. 1995). Oviposition by females and subsequent larval development also occur in this coastal prairie habitat ( i.e., open areas among native vegetation) (D. Kavanaugh, pers. comm. 1997; V. Cheap, in litt . 1997). The density of larval burrows decreases with increasing vegetation cover (G. Hayes, in litt . 1997).

The historic range of the Ohlone tiger beetle cannot be precisely assessed because the species was only recently discovered, and no historic specimens or records are available. The earliest specimen recorded was collected from a site northwest of the City of Santa Cruz in 1987 (Freitag et al . 1993). Based on available information on topography, substrates, soils, and vegetation, it is likely that suitable habitat for the Ohlone tiger beetle was more extensive and continuous prior to the increase in urban development and agriculture. Historically, potentially suitable habitat may have extended from southwestern San Mateo County to northwestern Monterey County, California (Freitag et al . 1993). However, we have no evidence or data indicating that this species occurred beyond the present known occupied areas of Santa Cruz County. Currently, the extent of potentially suitable habitat for the Ohlone tiger beetle is estimated at 81 to 121 hectares (ha) (200 to 300 acres (ac)) in Santa Cruz County, California (Freitag et al . 1993).

The available data indicate a restricted range and limited distribution of the Ohlone tiger beetle. This finding is supported by the following considerations. First, many tiger beetle species are known to be restricted to specific habitats (Pearson 1988; Knisley and Hill 1992; Pearson and Cassola 1992), such as the open native grassland occupied by the Ohlone tiger beetle. Second, tiger beetles are widely collected and well studied, yet no historic specimens were found in the extensive collections of the California Academy of Sciences (Freitag et al . 1993). The Ohlone tiger beetle's specialized habitat and restricted range may account for the absence of collection records prior to 1987. Because Cicindela is a very popular insect genus to collect (Chris Nagano, Service, pers. comm. 1993), and because entomologists commonly collect out of season and out of known ranges in order to find temporally and spatially outlying specimens, one would expect more specimens to have been collected if the Ohlone tiger beetle were more widespread and common.

Only five populations of Ohlone tiger beetles are known to exist. All known populations are located on coastal terraces supporting remnant stands of native grassland. One population occurs northwest of the City of Soquel at 60 to 90 meters (m) (200 to 295 feet (ft)) elevation. A second population is located in the City of Scotts Valley at 210 m (690 ft) elevation; a third is located west of the City of Santa Cruz at 110 m (360 ft) elevation on property owned by the County of Santa Cruz; a fourth population is found in a preserve northwest of the City of Santa Cruz and owned by the City and occurs at about 110 m (360 ft) elevation; and the fifth population is found northwest of the City of Santa Cruz on properties owned by the University of Santa Cruz (University) and the California Department of Parks and Recreation, at about 340 m (1115 ft) elevation (Freitag et al . 1993; R. Morgan, in litt . 1994; G. Hayes, in litt . 1997). The abundance of individuals in each population is unknown. However, each population is localized to areas of less than 2 ha (5 ac) (G. Hayes, pers. comm. 1995).

Researchers conducted two separate surveys to assess the current distribution and status of the Ohlone tiger beetle. Between 1990 and 1994, researchers surveyed 14 sites with native grassland habitat from southwestern San Mateo County to southern Santa Cruz County for Ohlone tiger beetles. Six additional locations supporting nonnative grasslands, but which appeared otherwise suitable, were also surveyed. Surveys were conducted from February to April, when Ohlone tiger beetles are active. This work documented four of the five known populations (R. Morgan, in litt . 1994); the preserve population was not known or found during this survey effort.

A second survey effort, conducted during the 1995 activity season, surveyed for populations of Ohlone tiger beetles in coastal grasslands from southern San Mateo County to northern Monterey County. Researchers visited sites repeatedly through the Ohlone tiger beetle's season of activity. These surveys confirmed the four previously known populations and discovered the fifth population at the city-owned preserve (G. Hayes, in litt . 1997). All five known populations are located within the urban areas of the City of Santa Cruz and surrounding communities.

Based on the results of the two survey efforts and the above considerations, we conclude that the Ohlone tiger beetle is restricted to remnant patches of native grassland on coastal terraces in the mid-county portion of coastal Santa Cruz County, California.

On February 18, 1993, we received a petition from Randall Morgan of Soquel, California, requesting that we add the Ohlone tiger beetle to the list of threatened and endangered species pursuant to the Act. The petition contained information indicating that the Ohlone tiger beetle has a limited distribution and specialized habitat requirements and is threatened by proposed development projects and recreational activities. Our 90-day petition finding, published on January 27, 1994, in the Federal Register (59 FR 3330), determined that substantial information was presented in the petition indicating that listing may be warranted. Our 12-month petition finding, published on March 1, 1996, in the Federal Register (61 FR 8014), concluded a not-warranted determination due to inadequate life history information and survey data to conclusively determine that the beetle is restricted to the described habitat.

On April 30, 1997, we received a second petition from Grey Hayes of Santa Cruz, California, to emergency-list the Ohlone tiger beetle as an endangered species under the Act. The petition specified endangered status because of the beetle's limited distribution and threats from proposed development projects, invasion of nonnative plants, and recreational activities. Based on the information provided by the petitioner and additional information gathered since the first petition in 1993, we determined that emergency-listing the Ohlone tiger beetle was not justified but that listing of this species as endangered is warranted. Therefore, in our most recent Notice of Review, published on October 25, 1999 (64 FR 57534), we included the Ohlone tiger beetle as a candidate species. Candidate species are those species for which listing is warranted but precluded by other pending listing actions, in accordance with section 4(b)(3)(B)(iii) of the Act.

The processing of this proposed rule conforms with our current Listing Priority Guidance published in the Federal Register on October 22, 1999 (64 FR 57114). The guidance clarifies the order in which we will process rulemakings. Highest priority is processing emergency listing rules for any species determined to face a significant and imminent risk to its well-being (Priority 1). Second priority (Priority 2) is processing final determinations on proposed additions to the lists of endangered and threatened wildlife and plants. Third priority is processing new proposals to add species to the lists. The processing of administrative petition findings (petitions filed under section 4 of the Act) is the fourth priority. The processing of critical habitat determinations (prudency and determinability decisions) and proposed or final designations of critical habitat will no longer be subject to prioritization under the Listing Priority Guidance. This proposed rule is a Priority 3 action and is being completed in accordance with the current Listing Priority Guidance.

In accordance with interagency policy published on July 1, 1994 (59 FR 34270), upon publication of this proposed rule in the Federal Register we will solicit expert reviews by at least three specialists regarding pertinent scientific or commercial data and assumptions relating to the taxonomic, biological, and ecological information for the Ohlone tiger beetle. The purpose of such a review is to ensure that listing decisions are based on scientifically sound data, assumptions, and analyses, including the input of appropriate experts.

Section 4 of the Act and regulations (50 CFR part 424) issued 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 Ohlone tiger beetle ( Cicindela ohlone ) are as follows:

A. The present or threatened destruction, modification, or curtailment of its habitat or range. Loss of habitat is the principal threat to insect species worldwide because of their close associations with, and dependence on, specific habitats (Pyle et al. 1981). The effects of habitat destruction and modification on tiger beetle species have been documented by Knisley and Hill (1992) and Nagano (1982). The Ohlone tiger beetle is restricted to remnant patches of native grassland on coastal terraces where low and sparse vegetation provide space for foraging, reproduction, and thermoregulation, and support a prey base of other invertebrate species. The poorly drained clay or sandy clay substrate of the coastal terraces provides the soil moisture, composition, and temperature conditions necessary for oviposition and larval development (Pearson 1988; Kaulbars and Freitag 1993).

The five known populations of the Ohlone tiger beetle are threatened by habitat destruction by urban development and/or habitat modification by invasive nonnative vegetation. Disturbance of the substrate and removal or elimination of vegetation by urban development kills or injures individuals and precludes others from feeding, sheltering, or reproducing. Historically, potentially suitable habitat is believed to have extended from southwestern San Mateo County to northwestern Monterey County, California (Freitag et al. 1993). Most of this habitat has been modified or destroyed by human actions such as urbanization and agriculture (Freitag et al. 1993).

About 6,060 to 8,080 ha (15,000 to 20,000 ac) of native grassland remain in Santa Cruz County, and not more than 81 to 121 ha (200 to 300 ac) contain the proper combination of substrate, slope, and exposure (bare areas between patches of grasses) to be considered suitable habitat for the Ohlone tiger beetle (Freitag et al. 1993). Nearly all of this suitable habitat is located within or adjacent to urbanized areas in the coastal mid-county area of Santa Cruz. Much of the City of Santa Cruz and its adjacent towns were built on these marine terrace grassland habitats (Freitag et al. 1993). Within suitable habitat, the beetle occupies only sparsely vegetated areas and bare areas, which are artifacts of trails or past grazing sites. The total extent of the area occupied by the beetle is estimated to be 10 ha (25 ac) or less.

The Ohlone tiger beetle population northwest of the City of Soquel is threatened by a proposed 21-lot residential development. The preferred alternative of the proposed project would completely extirpate the Ohlone tiger beetle population by eliminating all of the known occupied habitat and most of the extant grassland habitat found on this site. One alternative in the final environmental impact report for the project does propose that the majority of suitable habitat for the Ohlone tiger beetle be set-aside and managed to reduce nonnative vegetation and enhance habitat quality. The county is currently waiting for the applicant to submit design reviews in a supplemental environmental impact report, which would then be available for public review. When this report will be available for review or whether the alternatives will contain changes that might affect the Ohlone tiger beetle is not known (Kim Tschantz, County of Santa Cruz, pers. comm. 1999).

The population site located in the City of Scotts Valley was proposed for development of 233 residential homes and an open park containing two ballfields. This proposed project would have set aside most of the beetle's occupied habitat by fencing a 30-m (100-ft) wide area between the two ballfields, but construction would still have occurred on adjacent occupied areas and known grassland habitat would have been eliminated. The adjacent development could have led to potential disturbance, such as pesticide drift, soil erosion, and vegetation alteration. In addition, the isolated population would have been more vulnerable to random extinction (see Factor E of this section). A final environmental impact report for this project was completed in the summer of 1998 (Impact Sciences, Inc. 1998). However, this proposed development was voted down in a referendum, thus halting the development of this property for the present time. The landowner is now considering both alternative development plans and the sale of the land. Local agencies and conservation groups are interested in purchasing the land as open space, but funding sources have not been identified. The future plans for the site are not known (Laura Kuhn, City of Scotts Valley, pers. comm. 1999).

A portion of the third population site for the Ohlone tiger beetle, located west of the City of Santa Cruz, was proposed as a residential housing development. The property was originally zoned as part of the Santa Cruz Greenbelt. However, that designation expired in 1994, and the property owners began to consider developing the property. In the spring of 1999, the City of Santa Cruz purchased the property, and it will be managed as open space by the City. The State of California will hold a conservation easement on the land. A management plan will be developed by the City of Santa Cruz, and the Ohlone tiger beetle will be considered in the plan. At the present time, the site is closed to public use except for officially escorted hikes (Susan Harris, City of Santa Cruz, pers. comm. 1999).

The rest of the third population site is still on private land. In September 1998, the property owners tilled up a large percentage of the area the Ohlone tiger beetle occupied, in preparation for converting the land from livestock grazing to a vineyard (G. Hayes, pers. comm. 1998). Whether the species has been completely extirpated from this site is not known.

The fourth population of Ohlone tiger beetles occurs northwest of Santa Cruz on land managed as a preserve by the California Department of Parks and Recreation (CDPR). The CDPR wants to develop their property and has a proposal for the opening of existing trails and the construction of a vehicle entrance road and parking area. The entrance road would be developed over a portion of occupied habitat. The vehicle parking area would be constructed adjacent to the Ohlone tiger beetle's occupied habitat. However, in the public works plan for this site, CDPR established a policy that road maintenance or other activities will be scheduled to minimize impacts on burrows, larval habitat, foraging activities, or other aspects of the population (CDPR 1997).

Property adjacent to the CDPR land is managed by the University of California, Santa Cruz (University), and a population of the beetle is known to occur on this property. Areas that the Ohlone tiger beetle inhabit are designated in the University's Long Range Development Plan for Site-Specific Research, Campus Resource Lands, and Environmental Reserve (University of California 1992). Although some development is possible in site-specific research areas and campus resource lands, no development projects are anticipated at this time (Graham Bice, University of California, pers. comm. 1995; G. Hayes, pers. comm. 1997).

In addition to the development threats to the Ohlone tiger beetle, the invasion of nonnative vegetation threatens the already reduced extent of suitable habitat for this species. Despite being relatively free of development threats, the fifth population site, located northwest of the City of Santa Cruz and owned by the City, is threatened by habitat degradation due to the invasion of nonnative plant species into the coastal prairie. Nonnative vegetation and forest vegetation are encroaching into grassland habitats and out-competing native grassland habitats and out-competing native grassland vegetation (S. Harris, pers. comm. 1998). The City is attempting to maintain the species' habitat by mowing parts of it to provide bare ground, and trails near where the Ohlone tiger beetle occurs will be closed to bicycles (S. Harris, pers. comm. 1999).

The other four populations of Ohlone tiger beetle are also threatened by invasion of nonnative vegetation ( e.g., French broom ( Cytisus monspessulanus), velvet grass ( Holcus spp.), filaree ( Erodium spp.), and Eucalyptus spp.) (R. Morgan, in litt. 1992; G. Hayes, in litt. 1997; G. Hayes, pers. comm. 1997). These nonnative plants are aggressive invaders that convert sunny, native grassland needed by Ohlone tiger beetles to habitat dominated by an overstory that shades the bare areas among the low or sparse native vegetation, thus covering the open sunny areas required by the Ohlone tiger beetle to thermoregulate, forage, and oviposit. In addition to shading these areas used by the beetle, the nonnative vegetation fills in the open spaces among the low or sparse vegetation creating an unsuitable densely vegetated habitat. Nonnative vegetation may also affect the numbers and diversity of the beetle's prey, predators, and parasites (see Factor C of this section). Increased vegetation encroachment is the primary factor attributed to the extirpation of several populations of other Cicindela species ( e.g., C. abdominalis and C. debilis ) (Knisley and Hill 1992). Without management efforts to reduce and control nonnative species, the populations of Ohlone tiger beetle will likely decline because of habitat degradation.

Areas that may once have been suitable for Ohlone tiger beetles have been converted to nonnative grasslands, or have been developed because the firm, level substrate of the coastal terraces afforded good building sites with scenic views of the Pacific Ocean. For the same reasons that other terraces have already been developed, remaining areas of suitable habitat are under great development pressure.

B. Overutilization for commercial, recreational, scientific, or educational purposes. Members of the genus Cicindela may be the subject of more intense collecting and study than any other single insect genus. Tiger beetle specimens are highly sought by amateur collectors (C. Nagano, pers. comm. 1993). In light of the recent discovery of the Ohlone tiger beetle, and concerns regarding its continued existence, the desirability of this species to private collectors may increase, leading to increased collection of specimens. The original petitioner for the Ohlone tiger beetle has been contacted by several people from such places as France, Wisconsin, and California, looking for Ohlone tiger beetle specimens they can add to their private collections, as well as those asking where the colonies are located and indicating they want to collect the species at those locations (R. Morgan, pers. comm. 1998). Listing this species as endangered will likely increase its attractiveness to private collectors. Unrestricted collecting is considered a threat to the species. Although the reproductive rate for the Ohlone tiger beetle is unknown, females of other species of Cicindela produce between 3.7 and 7.7 (mean range) eggs (Kaulbers and Freitag 1993). If the Ohlone tiger beetle has a similarly low reproductive rate, even limited collecting could have harmful effects on its reproductive or genetic viability and lead to extinction of the species.

The Ohlone tiger beetle is not likely to be used as a model organism for general research projects because it is a rare and limited species. It may be the subject of studies intended to improve understanding of the species' ecology and to improve management strategies for its conservation. Although such studies would directly benefit the recovery of the Ohlone tiger beetle, they may contribute cumulatively to other threats to the species.

C. Disease or Predation. No diseases are known to threaten the Ohlone tiger beetle. However, the Ohlone tiger beetle may be affected by any of several predators and parasites known to prey upon, and afflict, other tiger beetle species. The parasites are considered to have greater effects than predators (Nagano 1982; Pearson 1988). Known tiger beetle predators include birds, shrews (Soricidae), raccoons (Procyon lotor), lizards (Lacertilia), toads (Bufonidae), ants (Formicidae), robber flies (Asilidae) and dragonflies (Anisoptera) (Lavigne 1972; Nagano 1982; Pearson 1988). Known tiger beetle parasites include ant-like wasps of the family Typhiidae, especially the genera Mathoca, Karlissa, and Pterombrus, and the Bombyliid flies of the genus Anthrax (Nagano 1982; Pearson 1988). These insect parasites are distributed worldwide and specialize on tiger beetle larvae.

Predators and parasites play important roles in the natural dynamics of populations and ecosystems. However, the effects of predation and parasitism may pose substantial threats to Ohlone tiger beetle populations already affected by other factors, especially limited distribution and small, isolated populations. At this time, the magnitude of predation and parasitism on the Ohlone tiger beetle is not known.

D. The inadequacy of existing regulatory mechanisms. Regulatory mechanisms currently in effect do not provide adequate protection for the Ohlone tiger beetle and its habitat. Federal agencies are not legally required to consider and manage for species of concern.

At the State and local levels, regulatory mechanisms are also inadequate. The California Endangered Species Act does not allow for the listing of invertebrate species. State and local agencies may consider the Ohlone tiger beetle when evaluating certain activities for compliance with the California Environmental Quality Act (CEQA) and local zoning regulations. If an activity is identified as having a significant impact on this species, mitigation measures may be required by State and local regulatory agencies to offset these impacts. However, CEQA and local regulations do not provide specific protection measures to ensure the continued existence of the Ohlone tiger beetle. In addition, CEQA provisions for “Statements of Overriding Considerations” can allow projects to proceed despite unmitigated adverse impacts.

Ohlone tiger beetle habitat occurs on properties owned by the University, the CDPR, and the City of Santa Cruz. The University does not have a management plan that specifically protects the Ohlone tiger beetle or its habitat (G. Hayes, pers. comm. 1997). The CDPR has an existing Public Works Plan that calls for surveys to verify the occupied habitat boundary of the Ohlone tiger beetle and proposes to minimize the impacts of disturbance to the Ohlone tiger beetle during road maintenance and other scheduled activities in the plan (G. Gray, CDPR, pers. comm. 1997). However, a local citizen has expressed concern that surveys and minimization measures are not being adequately carried out (G. Hayes, in litt. 1999). For the site northwest of Santa Cruz, the City of Santa Cruz Parks and Recreation Department's Proposed Master Plan for the preserve proposes increased usage of existing trails, but identifies the Ohlone tiger beetle and its habitat as sensitive resources. The proposed master plan includes a management program for Ohlone tiger beetle habitat; however, implementation of any management actions will depend on future funding (S. Harris, per. comm. 1999).

For the site west of the City of Santa Cruz, a management plan will eventually be developed since this property has been purchased as open space. The property is officially closed to public use except for officially escorted hikes. However, the enforcement of this closure may not be adequate.

Because the Ohlone tiger beetle is not listed at the State or Federal levels, nothing prohibits importing, exporting, sale, or trade of the species.

E. Other natural or manmade factors affecting its continued existence. The five populations of the Ohlone tiger beetle are isolated and restricted to relatively small patches of habitat. Because a direct correlation exists between increased extinction rates with the reduction of available habitat area and increased distances between small populations (Gilpin 1987), the small, isolated populations of the Ohlone tiger beetle are more vulnerable to local extinction from random genetic and demographic events or environmental catastrophes. The small sizes of occupied habitat also reduce the ability of the habitats to buffer against edge effects and other influences from adjacent developed areas, such as pesticide drift, soil erosion, and vegetation alteration.

Although some species of tiger beetles are known to disperse over sizable distances (Pearson 1988), species from the purpurea group of the genus Cicindela typically do not disperse widely, usually 12 to 18 m (40 to 60 ft) (David Pearson, Arizona State University, pers. comm. 1997). The dispersal capabilities of Ohlone tiger beetles are unknown; however, because the Ohlone tiger beetle belongs to the purpurea group, its dispersal distance is most likely narrow. Assuming individuals to be capable of dispersing distances comparable to those between populations, the likelihood of successful emigration or colonization is greatly reduced by the small size of suitable habitat patches and the unavailability of even marginal habitat among the extensive urban development in the region.

Some recreational uses of Ohlone tiger beetle habitat (i.e., off-road motor vehicle use or heavy bicycling) may pose a threat to the Ohlone tiger beetles. The beetles require open ground to maneuver, take prey, and lay eggs. They use the hard-packed bicycle trails for foraging, thermoregulation, and laying their eggs (R. Morgan, pers. comm. 1998). Bicycle traffic on a trail through the University site has been observed to result in the crushing of several individual beetles (R. Morgan, in litt. 1993). Similar mortality has been observed in the species' habitat west of the City of Santa Cruz (R. Morgan, in litt. 1993) and may occur in other Ohlone tiger beetle populations. Also, bicycle and foot traffic could potentially collapse larval tunnels and crush the larvae. The significance of such mortality for population viability is not known at this time, but is considered a potential threat to the Ohlone tiger beetle, particularly if bicycle traffic through the habitat increases. Heavy vehicular traffic in areas with extensive use of public trails, such as on Santa Cruz University, City of Santa Cruz, and CDPR land, may also create soil compaction and rutting, damaging potential oviposition sites. Populations of another tiger beetle species found in the northeastern United States, Cicindela dorsalis dorsalis, were extirpated in several localities that were subjected to heavy recreational use ( i.e., heavy pedestrian foot traffic and vehicular use) but survived at other sites that had received little or no recreational disturbance (Knisley and Hill 1992).

Pesticides could pose a threat to the Ohlone tiger beetle. The effects of insecticides on other tiger beetle species are referenced by Nagano (1982). Local land owners may use pesticides to control targeted invertebrate species around their homes and gardens. These pesticides may drift aerially or be transported by water runoff into Ohlone tiger beetle habitat where they may kill nontargeted organisms including the Ohlone tiger beetle or its prey species. As urban development increases near or in Ohlone tiger beetle habitat, negative impacts from pesticides may become more frequent. The significance of pesticide effects is not known at this time, but they are recognized as a substantial potential threat to the species.

In making this proposed rule determination, we have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by the Ohlone tiger beetle. Threats to the five populations of Ohlone tiger beetle, including habitat fragmentation and destruction due to urban development, habitat degradation due to invasion of nonnative vegetation, vulnerability to random local extirpations, and potential threats due to collection, pesticides, and recreational use of habitat, imperil the continued existence of this species. Much of the habitat of this species is suitable for development and is unprotected from these threats. The Ohlone tiger beetle is known from only five populations. This species is in danger of extinction “throughout all or a significant portion of its range” (section 3(6) of the Act) and, therefore, meets the Act's definition of endangered. Because of the high potential for these threats, if realized, to result in the extinction of the Ohlone tiger beetle, the preferred action is to list this species as endangered.

Critical habitat is defined in section 3, paragraph (5)(A) of the Act as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and which may require special management considerations or protection; and specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of the Act, upon a determination by the Secretary that such areas are essential for the conservation of the species. “Conservation” means the use of all methods and procedures needed to bring the species to the point at which listing under the Act is no longer necessary.

Critical habitat designation, by definition, directly affects only Federal agency actions through consultation under section 7(a)(2) of the Act. Section 7(a)(2) requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of a listed species or destroy or adversely modify its critical habitat.

Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, we designate critical habitat at the time the species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following situations exist—(1) the species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (2) such designation of critical habitat would not be beneficial to the species.

The Final Listing Priority Guidance for FY 1999/2000 (64 FR 57114) states, that the processing of critical habitat determinations (prudency and determinability decisions) and proposed or final designations of critical habitat will no longer be subject to prioritization under the Listing Priority Guidance. Critical habitat determinations, which were previously included in final listing rules published in the Federal Register , may now be processed separately, in which case stand-alone critical habitat determinations will be published as notices in the Federal Register . We will undertake critical habitat determinations and designations during FY 1999 and FY 2000 as allowed by our funding allocation for that year. As explained in detail in the Listing Priority Guidance, our listing budget is currently insufficient to allow us to immediately complete all of the listing actions required by the Act.

We propose that critical habitat is prudent for the Ohlone tiger beetle. In the last few years, a series of court decisions have overturned Service determinations regarding a variety of species that designation of critical habitat would not be prudent ( e.g., Natural Resources Defense Council v. U.S. Department of the Interior 113 F. 3d 1121 (9th Cir. 1997); Conservation Council for Hawaii v. Babbitt, 2 F. Supp. 2d 1280 (D. Hawaii 1998)). Based on the standards applied in those judicial opinions, we believe that designation of critical habitat would be prudent for the Ohlone tiger beetle.

Due to the small number of populations, Ohlone tiger beetle is vulnerable to unrestricted collection, vandalism, or other disturbance. We are concerned that these threats might be exacerbated by the publication of critical habitat maps and further dissemination of locational information. However, at this time we do not have specific evidence for Ohlone tiger beetle of taking, vandalism, collection, or trade of this species or any similarly situated species. Consequently, consistent with applicable regulations (50 CFR 424.12(a)(1)(i)) and recent case law, we do not expect that the identification of critical habitat will increase the degree of threat to this species of taking or other human activity.

In the absence of a finding that critical habitat would increase threats to a species, if any benefits would derive from critical habitat designation, then a prudent finding is warranted. In the case of this species, designation of critical habitat may provide some benefits. The primary regulatory effect of critical habitat is the section 7 requirement that Federal agencies refrain from taking any action that destroys or adversely modifies critical habitat. While a critical habitat designation for habitat currently occupied by this species would not be likely to change the section 7 consultation outcome because an action that destroys or adversely modifies such critical habitat would also be likely to result in jeopardy to the species, there may be instances where section 7 consultation would be triggered only if critical habitat is designated. Examples could include unoccupied habitat or occupied habitat that may become unoccupied in the future. Designating critical habitat may also produce some educational or informational benefits. Therefore, we propose that critical habitat is prudent for Ohlone tiger beetle. However, the deferral of the critical habitat designation for Ohlone tiger beetle will allow us to concentrate our limited resources on higher priority critical habitat and other listing actions, while allowing us to put in place protections needed for the conservation of Ohlone tiger beetle without further delay. We anticipate in FY 2000 and beyond giving higher priority to critical habitat designation, including designations deferred pursuant to the Listing Priority Guidance, such as the designation for this species, than we have in recent fiscal years.

We plan to employ a priority system for deciding which outstanding critical habitat designations should be addressed first. We will focus our efforts on those designations that will provide the most conservation benefit, taking into consideration the efficacy of critical habitat designation in addressing the threats to the species, and the magnitude and immediacy of those threats. We will make the final critical habitat determination with the final listing determination for Ohlone tiger beetle. If this final critical habitat determination is that critical habitat is prudent, we will develop a proposal to designate critical habitat for Ohlone tiger beetle as soon as feasible, considering our workload priorities. Unfortunately, for the immediate future, most of Region 1's listing budget must be directed to complying with numerous court orders and settlement agreements, as well as due and overdue final listing determinations.

Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain activities. Recognition through listing results in public awareness and conservation actions by Federal, State, and local agencies, private organizations, and individuals. The Act provides for possible land acquisition and cooperation with the States and requires that recovery actions be carried out for all listed species. The protection required of Federal agencies and the prohibitions against taking and harm are discussed, in part, below.

Section 7(a) of the Act, as amended, requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened, and with respect to its critical habitat, if any is being designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into formal consultation with us.

Federal involvements are not known to exist within the habitat of the Ohlone tiger beetle. If any Federal agency were to fund or issue permits for a project that may affect the Ohlone tiger beetle, that agency would be required to consult with us. Possible nexuses include the Department of Housing and Urban Development and the Department of Commerce's Small Business Administration for funding, and the U.S. Army Corps of Engineers for permits authorized under section 404 of the Clean Water Act.

Listing the Ohlone tiger beetle as endangered will provide for the development of a recovery plan. Such a plan will bring together Federal, State, and local efforts for its conservation. The plan will establish a framework for cooperation and coordination in conservation efforts. The plan will set recovery priorities and estimate costs of various tasks necessary to accomplish them. It also will describe site-specific management actions necessary to achieve the conservation and survival of the Ohlone tiger beetle.

The Act and implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered wildlife. These prohibitions, in part, make it illegal for any person subject to the jurisdiction of the United States to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these), import or export, ship in interstate commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any endangered wildlife species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to our agents and State conservation agencies.

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

As published in the Federal Register on July 1, 1994 (59 FR 34272), it is our policy to identify to the maximum extent practicable at the time a species is listed those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of this listing on proposed and ongoing activities within the species' range.

We believe that, based on the best available information, if the Ohlone tiger beetle is listed under the Act, the following actions are not likely to result in a violation of section 9, provided these activities are carried out in accordance with existing regulations and permit requirements:

(1) Possession, delivery, or movement, including interstate transport and import into or export from the United States, involving no commercial activity, of dead specimens of this taxon that were collected prior to the date of publication in the Federal Register of a final regulation adding this taxon to the list of endangered species; and (2) Activities conducted in accordance with reasonable and prudent measures identified by us in a biological opinion issued pursuant to section 7 of the Act, and activities authorized under section 10 of the Act.

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

(1) Collection of specimens of this taxon for private possession or deposition in an institutional collection;

(2) Sale or purchase of specimens of this taxon, except for properly documented antique specimens of this taxon at least 100 years old, as defined by section 10(h)(1) of the Act;

(3) The unauthorized release of biological control agents that attack any life stage of this taxon; and

(4) Noncompliance with the California Department of Parks and Recreation management plans that restrict recreational uses ( i.e., biking and foot traffic) of areas designated as occupied habitat by the Ohlone tiger beetle.

Questions regarding whether specific activities would constitute a violation of section 9 should be directed to our Ventura Fish and Wildlife Office (see ADDRESSES section).

To request copies of the regulations concerning listed wildlife or to inquire about prohibitions of section 9, contact our Ventura Fish and Wildlife Office (see ADDRESSES section). Requests for copies of regulations for issuing permits may be addressed to the U.S. Fish and Wildlife Service, Ecological Services, Endangered Species Permits, 911 N.E. 11th Avenue, Portland, Oregon, 97232-4181 (telephone 503/231-2063; facsimile 503/231-6243).

Our intent is for any final action resulting from this proposal to be as accurate and as effective as possible. Therefore, we solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule. Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. In certain circumstances, we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. All comments, including written and e-mail, must be received in our Ventura Fish and Wildlife Office by April 11, 2000. We particularly seek comments concerning:

(1) Biological, commercial, trade, or other relevant data concerning threat (or lack thereof) to the Ohlone tiger beetle.

(2) The location of any additional populations of Ohlone tiger beetle and the reasons why any habitat should or should not be determined to be critical habitat for this species pursuant to section 4 of the Act.

(3) Additional information concerning the essential habitat features (biotic and abiotic), range, distribution, population size of this taxon, and information relating to the distributions of genetically distinct individuals within the population.

(4) Current or planned activities in the subject area and their possible impacts on this taxon.

Final promulgation of the regulations on Ohlone tiger beetle will take into consideration any comments and any additional information we receive during the comment period, and such communications may lead to a final regulation that differs from this proposal.

The Act provides for a public hearing on this proposal, if requested. Requests must be received within 45 days of the date of publication of the proposal in the Federal Register . Such requests must be made in writing and be addressed to the Field Supervisor of the Service's Ventura, Fish and Wildlife Office (see ADDRESSES section).

We have determined that Environmental Assessments, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted pursuant to Section 4(a) of the Act. A notice outlining our reasons for this determination was published in the Federal Register on October 25, 1983 (48 FR 49244).

This rule does not contain any information collection requirements for which Office of Management and Budget (OMB) approval under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , is required. Any information collection related to the rule pertaining to permits for endangered and threatened species has OMB approval and is assigned clearance number 1018-0094. This rule does not alter that information collection requirement. For additional information concerning permits and associated requirements for endangered wildlife species, see 50 CFR 17.22.

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

The primary author of this proposed rule is Colleen Sculley, Ventura Fish and Wildlife Office (see ADDRESSES section) (telephone 805/644-1766).

For the reasons given in the preamble, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

The history of petitions NMFS has received regarding west coast steelhead is summarized in a final rule and notice of determination for five steelhead ESUs (Lower Columbia River; Central Valley, California; Oregon Coast; Klamath Mountains Province; and Northern California ESUs) that was published on March 19, 1998 (63 FR 13347). The most comprehensive petition was submitted by Oregon Natural Resources Council and 15 co-petitioners on February 16, 1994. In response to this petition, NMFS assessed the best available scientific and commercial data, including technical information from Pacific Salmon Biological Technical Committees (PSBTCs) and interested parties in Washington, Oregon, Idaho, and California, and convened a Biological Review Team (BRT), composed of staff from NMFS' Northwest and Southwest Fisheries Science Centers and Southwest Regional Office, as well as a representative of the U.S. Geological Survey Biological Resources Division (formerly the National Biological Service) to conduct a coast-wide status review for west coast steelhead (Busby et al ., 1996).

Based on the results of the BRT's status review, an analysis of Federal, state, and local conservation measures, and other information which NMFS determined constituted the best scientific and commercial data available, NMFS published a proposed listing determination (61 FR 41541, August 9, 1996) that identified 15 ESUs of steelhead in the states of Washington, Oregon, Idaho, and California. Ten of these ESUs, including the Northern California ESU, were proposed for listing as threatened or endangered species, four were found not warranted for listing, and one was identified as a candidate for listing.

On August 18, 1997, NMFS published a final rule listing five ESUs as threatened and endangered under the ESA (62 FR 43937, August 18, 1997). In a separate document published on the same day, NMFS determined substantial scientific disagreement remained for five proposed ESUs, including the Northern California steelhead ESU (62 FR 43974, August 18, 1997). In accordance with section 4(b)(6)(B)(i) of the ESA, NMFS deferred its decision on these five steelhead ESUs for 6 months for the purpose of soliciting additional data. During this 6-month period of deferral, NMFS received new scientific information regarding the status of these proposed steelhead ESUs. This new information was evaluated by NMFS' BRT which prepared both an updated status review for these five ESUs [Memorandum to William Stelle and William Hogarth from M. Schiewe, December 18, 1997, Status of Deferred and Candidate ESUs of West Coast Steelhead (NMFS, 1997a), and a review of the associated hatchery populations [Memorandum to William Stelle and William Hogarth from Michael Schiewe, January 13, 1998, Status Review Update for Deferred ESUs of West Coast Steelhead: Hatchery Populations (NMFS, 1998a).

Based on a review of the updated scientific information for these ESUs, as well as a review and evaluation of Federal, State, and local conservation measures reducing the threats to these ESUs, NMFS issued a final rule (63 FR 13347, March 19, 1998) listing two ESUs as threatened (Lower Columbia River and Central Valley California), and a notice of determination that three ESUs (Oregon Coast, Klamath Mountains Province, and Northern California) did not warrant listing. NMFS' determination that these three ESUs did not warrant listing was based on the best available scientific and commercial data, which indicated these ESUs were at a lower risk of extinction than at the time of the proposed listing determination. Even though the risks confronting these ESUs had been reduced to a point at which listing was not warranted, NMFS still expressed concerns about the status of these three ESUs in the notice of determination, and therefore, identified them as candidate species which the agency would continue to monitor.

NMFS's March 19, 1998 (63 FR 13347), decision not to list the Northern California steelhead ESU was based largely on a determination that sufficient Federal and state conservation measures were in place to reduce threats to the ESU such that the proposed threatened listing was unnecessary. The Federal and state conservation measures upon which NMFS based this determination included: (1) implementation of a March 11, 1998, Memorandum of Agreement (MOA) between NMFS and the State of California (NMFS/California MOA, 1998), with particular importance given to implementation of those provisions in the MOA which were intended to improve non-Federal forest land protections in the ESU (81 percent of land ownership is non-Federal land); (2) implementation of more restrictive in-river harvest regulations by California which were intended to reduce mortality and increase the viability of naturally reproducing steelhead populations; and (3) improved protections to habitat and naturally reproducing steelhead from expanded habitat protection and restoration efforts, improvements in the management of hatchery steelhead stocks, and expanded population monitoring.

At the time of its decision not to list the Northern California ESU, NMFS considered the protection and restoration of freshwater spawning, rearing, and migratory habitat on non-Federal lands to be essential for the long-term survival and recovery of this ESU because non-Federal lands represented such a large portion of the available habitat (81 percent) (63 FR 13347, March 19, 1998). Because of NMFS' concerns regarding the preponderance of private timber lands and timber harvest in the Northern California ESU, the NMFS/California MOA contained several provisions calling for the review and revision of California's forest practice rules (FPRs), and a review of their implementation and enforcement by January 1, 2000. NMFS considered full implementation of these critical provisions within the specified time frame to be essential for achieving properly functioning habitat conditions for steelhead in this ESU.

In accordance with the NMFS/California MOA, a scientific review panel was established by the state to review the California FPRs, including their implementation and enforcement. The scientific review panel completed its review and provided the State's Board of Forestry with its findings and recommendations in June 1999. In its findings, the review panel concluded that California's FPRs, including their implementation through the existing timber harvest plan process, do not ensure protection of anadromous salmonid habitat and populations. To address these shortcomings, and as specified in the NMFS/California MOA, the California Resources Agency and CalEPA jointly presented the Board of Forestry with a proposed rule change package in July 1999. Following several months of public review, the Board of Forestry took no action on the package in October 1999, thereby precluding any possibility of implementing improvements in California's FPRs by January 1, 2000, as the State committed to do in the NMFS/California MOA.

Although NMFS' March 19, 1998, decision not to list the Northern California ESU concluded that improvements in steelhead harvest and hatchery management would provide immediate conservation benefits to this ESU, an essential component of the decision was based on NMFS' expectation that changes in the State's FPRs would be implemented by January 1, 2000. Because these critical conservation measures are not being implemented by the State of California and, therefore, are not reducing threats to this ESU that were anticipated at the time of its March 19, 1998, decision not to list the ESU, NMFS determined that a formal reconsideration of the status of this ESU was warranted (December 3, 1999, Memorandum from Rodney R. McInnis and William Stelle, Jr. to Penelope D. Dalton (NMFS, 1999).

Biological information for west coast steelhead ( Oncorhynchus mykiss ) and the Northern California ESU in particular, can be found in steelhead status assessments conducted by NMFS (Busby et al ., 1996; NMFS, 1997a; NMFS, 2000) and in previous Federal Register documents (61 FR 41541, August 9, 1996; 63 FR 13347, March 19, 1998). A summary of steelhead life history follows.

O . mykiss exhibits one of the most complex suites of life history traits of any salmonid species. Individuals may exhibit anadromy (meaning they migrate as juveniles from fresh water to the ocean, and then return to spawn in fresh water) or freshwater residency (meaning they reside their entire life in fresh water). Resident forms are usually referred to as “rainbow” or “redband” trout, while anadromous life forms are termed “steelhead.” Few detailed studies have been conducted regarding the relationship between resident and anadromous O . mykiss , and as a result, the relationship between these two life forms is poorly understood. The scientific name for the biological species that includes both steelhead and rainbow trout has been changed from Salmo gairdneri to O . mykiss . This change reflects the premise that all trouts from western North America share a common lineage with Pacific salmon.

Steelhead typically migrate to marine waters after spending 2 years in fresh water. They then reside in marine waters for typically 2 or 3 years prior to returning to their natal stream to spawn as 4- or 5-year-olds. Unlike other Pacific salmon, steelhead are iteroparous, meaning they are capable of spawning more than once before they die. However, it is rare for steelhead to spawn more than twice before dying; most that do so are females. Steelhead adults typically spawn between December and June (Bell, 1990; Busby et al ., 1996). Depending on water temperature, steelhead eggs may incubate in “redds” (nesting gravels) for 1.5 to 4 months before hatching as “alevins” (a larval life stage dependent on food stored in a yolk sac). Following yolk sac absorption, young juveniles or “fry” emerge from the gravel and begin actively feeding. Juveniles rear in fresh water from 1 to 4 years, then migrate to the ocean as “smolts.”

Biologically, steelhead can be divided into two reproductive ecotypes, based on their state of sexual maturity at the time of river entry and the duration of their spawning migration. These two ecotypes are termed “stream maturing” and “ocean maturing.” Stream maturing steelhead enter fresh water in a sexually immature condition and require several months to mature and spawn. Ocean maturing steelhead enter fresh water with well developed gonads and spawn shortly after river entry. These two reproductive ecotypes are more commonly referred to by their season of freshwater entry ( i.e. , summer (stream maturing) and winter steelhead (ocean maturing)). The Northern California ESU contains populations of both winter and summer steelhead.

Two major genetic groups or “subspecies” of steelhead occur on the west coast of the United States: a coastal group and an inland group, separated in the Fraser and Columbia River Basins approximately by the Cascade crest (Huzyk & Tsuyuki, 1974; Allendorf, 1975; Utter & Allendorf, 1977; Okazaki, 1984; Parkinson, 1984; Schreck et al ., 1986; Reisenbichler et al ., 1992). Behnke (1992) proposed classifying the coastal subspecies as O . m . irideus and the inland subspecies as O . m . gairdneri . These genetic groupings apply to both anadromous and nonanadromous forms of O . mykiss . Both coastal and inland steelhead occur in Washington and Oregon. California is thought to have only coastal steelhead while Idaho has only inland steelhead. The Northern California steelhead ESU is part of the coastal grouping.

Historically, steelhead were distributed throughout the North Pacific Ocean from the Kamchatka Peninsula in Asia to the northern Baja Peninsula. Presently, the species distribution extends from the Kamchatka Peninsula, east and south along the Pacific coast of North America, to at least Malibu Creek in southern California. There are infrequent anecdotal reports of steelhead occurring as far south as the Santa Margarita River in San Diego County (McEwan & Jackson, 1996). In 1999, juvenile O . mykiss suspected of being the progeny of steelhead were reported from San Mateo Creek which is in northernmost San Diego County, just north of the Santa Margarita River. Historically, steelhead likely inhabited most coastal streams in Washington, Oregon, and California as well as many inland streams in these states and Idaho. However, during this century, over 23 indigenous, naturally reproducing stocks of steelhead are believed to have been extirpated, and many more are thought to be in decline in numerous coastal and inland streams in Washington, Oregon, Idaho, and California. Forty-three stocks have been identified by Nehlsen et al (1991) as being at moderate or high risk of extinction.

To qualify for listing as a threatened or endangered species, the identified populations of steelhead must be considered “species” under the ESA. The ESA defines “species” to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” NMFS published a policy (56 FR 58612, November 20, 1991) describing how the agency will apply the ESA definition of “species” to anadromous salmonid species. This policy provides that a salmonid population will be considered distinct, and hence a species, under the ESA, if it represents an ESU of the biological species. A population must satisfy two criteria to be considered an ESU: (1) It must be reproductively isolated from other conspecific population units; and (2) it must represent an important component in the evolutionary legacy of the biological species. The first criterion, reproductive isolation, need not be absolute, but must be strong enough to permit evolutionarily important differences to accrue in different population units. The second criterion is met if the population contributes substantially to the ecological/genetic diversity of the species as a whole. Guidance on the application of this policy is contained in Waples (1991), a NOAA Technical Memorandum entitled “Definition of `Species' Under the Endangered Species Act: Application to Pacific Salmon,” which are available upon request (see ADDRESSES ). The genetic, ecological, and life history characteristics, as well as human-induced genetic changes that NMFS assessed to identify the number and geographic extent of steelhead ESUs on the west coast, including the Northern California steelhead ESU, are discussed in detail in Busby et al . (1996) and in the August 9, 1996, proposed listing determination for west coast steelhead (61 FR 41541).

The Northern California steelhead ESU has been described in previous Federal Register documents (61 FR 41541, 62 FR 43937 and 63 FR 13347) based on analyses conducted by NMFS and summarized in the following documents: “Status Review for West Coast Steelhead from Washington, Idaho, Oregon, and California” (Busby et al ., 1996) and “Status Review Update for West Coast Steelhead from Washington, Idaho, Oregon, and California” (NMFS, 1997). The relationship between hatchery steelhead populations and naturally spawned steelhead within this ESU was also assessed in: “Status Review Update Deferred ESUs of West Coast Steelhead: Hatchery Populations” (NMFS, 1998a). Copies of these NMFS documents are available upon request (see ADDRESSES ). NMFS has received no new scientific information indicating that a change in the Northern California ESU definition is warranted.

This Northern California coastal steelhead ESU occupies river basins from Redwood Creek in Humboldt County, CA to the Gualala River, inclusive, in Mendocino County, CA. Dominant vegetation along the coast is redwood forest, while some interior basins are much drier than surrounding areas and are characterized by many endemic species. This area includes the extreme southern end of the contiguous portion of the Coast Range Ecoregion (Omernick, 1987). Elevated stream temperatures (greater than 20° C) are a factor in some of the larger river basins, but not to the extent that they are in river basins farther south. Precipitation is generally higher in this geographic area than in regions to the south, averaging 100-200 cm of rainfall annually (Donley et al ., 1979). With the exception of major river basins such as the Eel, most rivers in this region have peak flows of short duration. Strong and consistent coastal upwelling begins at about Cape Blanco and continues south into central California, resulting in a relatively productive nearshore marine environment.

The Northern California ESU includes both winter and summer steelhead, including what is presently considered to be the southernmost population of summer steelhead, in the Middle Fork Eel River. Half-pounder juveniles also occur in this geographic area, specifically in the Mad and Eel Rivers. Snyder (1925) first described the half-pounder from the Eel River; however, Cramer et al . (1995) suggested that adults with the half-pounder juvenile life history may not spawn south of the Klamath River Basin. As with the Rogue and Klamath Rivers which are located in the Klamath Mountains Province ESU, some of the larger rivers in this ESU have migrating steelhead year-round, and seasonal runs have been named. River entry ranges from August through June and spawning from December through April, with peak spawning in January in the larger basins and in late February and March in the smaller coastal basins.

Based on the review of steelhead hatchery programs in this ESU (NMFS, 1998a), NMFS' steelhead BRT concluded that the following steelhead hatchery stocks are part of this ESU because they were established from indigenous natural populations and there is limited impact from the inclusion of out-of-basin fish in the broodstock: Van Arsdale Fisheries Station stock (Eel River), the Yager Creek stock (Eel River tributary), Ten Mile River stock, and North Fork Gualala River stock. The BRT concluded that the Mad River hatchery summer steelhead stock is not part of the ESU based on its origin from out-of-basin steelhead populations combined with the mixing of Eel River summer steelhead in the broodstock. Rearing of this stock was terminated at the Mad River hatchery in 1996. The majority of the BRT concluded that the Mad River hatchery winter steelhead stock is not part of this ESU although a minority of the BRT was uncertain regarding its relationship to the naturally spawning population. This stock was founded from South Fork Eel River steelhead (within the ESU, but out of the Mad River basin) and some local Mad River steelhead.

Section 3 of the ESA defines the term “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range.” The term “threatened species” is defined as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. In its previous status reviews for west coast salmon and steelhead, NMFS has identified a number of factors that should be considered in evaluating the level of risk faced by an ESU, including: (1) absolute numbers of fish and their spatial and temporal distribution; (2) current abundance in relation to historical abundance and current carrying capacity of the habitat; (3) trends in abundance; (4) natural and human-influenced factors that cause variability in survival and abundance; (5) possible threats to genetic integrity (e.g., from strays or outplants from hatchery programs); and (6) recent events (e.g., a drought or changes in harvest management) that have predictable short-term consequences for abundance of the ESU.

Based on these factors and the best available scientific information, NMFS' BRT first reviewed the status of the Northern California ESU in its original coast-wide status review for steelhead (Busby et al ., 1996). The BRT concluded that the Northern California steelhead ESU was likely to become endangered in the foreseeable future. Population abundance was determined to be very low relative to historical estimates (1930's dam counts), and recent trends were downward in stocks for which data were available with the exception of two summer steelhead stocks. Summer steelhead abundance in particular was very low in this ESU. The BRT expressed particular concern regarding sedimentation resulting in part from poor land management practices and channel restructuring due to floods. The abundance of the pikeminnow as a predator in the Eel River was also identified as a significant concern. For the Mad River, in particular, the BRT was concerned about the influence of hatchery stocks both in terms of genetic introgression and the potential for ecological interactions between introduced stocks and native stocks.

The status of the Northern California ESU was reassessed by NMFS' BRT in an updated status review following the 6-month period of deferral because of scientific disagreements (NMFS, 1997a). Based on this updated status review, NMFS' BRT once again concluded that Northern California steelhead ESU was likely to become endangered in the foreseeable future. The BRT reported that there was very limited abundance data available for this ESU, particularly for winter-run steelhead. The most complete data set available in this ESU is a time series of winter steelhead dam counts on the Eel River at Cape Horn Dam. The updated abundance data (through 1997) showed moderately declining long-term and short-term trends in abundance, and the vast majority of these fish were believed to be of hatchery origin. These data show a strong decline in abundance prior to 1970, but no significant trend thereafter. Additional winter steelhead data are available for Sweasy Dam on the Mad River which show a significant decline, but that data set ends in 1963. For the seven populations where recent trend data were available, the only runs showing recent increases in abundance in the ESU were the relatively small populations of summer steelhead in the Mad River which has had high hatchery production, and winter steelhead in Prairie Creek where the increase may be due to increased monitoring or mitigation efforts.

As in its original assessment, the BRT continued to be concerned about the risks associated with interactions between naturally spawning populations and hatchery steelhead in this ESU. Of particular concern to the BRT was the potentially deleterious impact to wild steelhead from past hatchery practices at the Mad River hatchery, primarily from transfers of non-indigenous Mad River hatchery fish to other streams in the ESU and the production of non-indigenous summer steelhead. These potentially deleterious hatchery practices for summer steelhead ended in 1996.

Habitat degradation and other factors were also of concern to the BRT in its reassessment of the long-term risks to this ESU. Specific factors which the BRT identified included dams on the upper Eel and Mad Rivers, the likely existence of minor blockages throughout the ESU, continuing impacts of catastrophic flooding on the 1960s, and reductions in riparian and instream habitat and increased sedimentation from timber harvest activities. The BRT also cited poaching of summer steelhead and predation from pikeminnow in the Eel River as factors for concern. NMFS' supplemental review of factors affecting west coast steelhead also identified water diversion and extraction, agriculture, and mining as factors affecting habitat conditions for steelhead in this ESU (NMFS, 1996).

In conjunction with this reconsideration of the Northern California steelhead ESU, NMFS' Southwest Fisheries Science Center (SWFSC) recently completed another updated status review for this ESU (January 2000 Memorandum from Pete Adams, Southwest Fisheries Science Center (SWFSC) to Rodney R. McInnis, Regional Administrator, Southwest Region (NMFS, 2000)). Based on a review of updated abundance and trend information that was available for this ESU, the SWFSC concluded that the current status of the ESU has not changed significantly since it was last evaluated by NMFS' BRT in December 1997 (NMFS, 1997a). Updated abundance and trend data show small increases for winter and summer steelhead in the Eel River, but current abundance is well below estimates in the 1980s and even further reduced from levels in the 1960s. Redwood Creek summer steelhead abundance remains very low. There are no new data suggesting substantial increases or decreases in populations since the last updated status review was completed. The Eel River winter and summer steelhead populations, which represent the best available data set for this ESU, are still severely reduced from pre-1960's levels.

Section 4(a)(1) of the ESA and NMFS' implementing regulations (50 CFR part 424) set forth procedures for listing species. The Secretary of Commerce (Secretary) must determine, through the regulatory process, if a species is endangered or threatened based upon any one or a combination of the following factors: (1) The present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or education purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; or (5) other natural or human-made factors affecting its continued existence.

NMFS has prepared a report that summarizes the factors leading to the decline of steelhead on the west coast entitled: “Factors for Decline: A supplement to the notice of determination for west coast steelhead” (NMFS 1996). This report, available upon request (see ADDRESSES section), concludes that all of the factors identified in section 4(a)(1) of the ESA have played a role in the decline of the species. The report identifies destruction and modification of habitat, overutilization for recreational purposes, and natural and human-made factors as being the primary causes for the decline of steelhead on the west coast. NMFS (1996) identified several factors that were considered to have contributed to its decline of the Northern California steelhead ESU including: impacts from historic flooding (principally in 1964), predation, water diversions and extraction, minor habitat blockages, poaching, timber harvest, agriculture, and mining. NMFS's steelhead BRT also identified the potentially adverse impacts of the release of non-indigenous hatchery-produced steelhead in this ESU as an important factor, and expressed concerns regarding the lack of reliable abundance and trend data for assessing the status of steelhead in this ESU (NMFS, 1997a). Finally, NMFS was also concerned about the impacts of recreational angling because of the depressed status of steelhead populations and the uncertainty regarding the status of this ESU (March 11, 1998, Memorandum from William Hogarth to Rolland Schmitten (NMFS, 1998e)). The following discussion briefly summarizes findings regarding factors for decline across the range of west coast steelhead, including the Northern California ESU.

Steelhead on the West Coast of the United States have experienced declines in abundance in the past several decades as a result of natural and human factors. Forestry, agriculture, mining, and urbanization have degraded, simplified, and fragmented habitat. Water diversions for agriculture, flood control, domestic, and hydropower purposes have greatly reduced or eliminated historically accessible habitat. Among other factors, NMFS (1996) specifically identified timber harvest, agriculture, mining, habitat blockages, and water diversions as important factors for the decline of steelhead in the Northern California ESU. NMFS (1998a) discussed these factors in more detail. Studies estimate that during the last 200 years, the lower 48 states have lost approximately 53 percent of all wetlands and the majority of the rest are severely degraded (Dahl 1990; Tiner 1991). Washington and Oregon's wetlands are estimated to have diminished by one-third, while California has experienced a 91-percent loss of its wetland habitat (Dahl, 1990; Jensen et al ., 1990; Barbour et al ., 1991; Reynolds et al ., 1993). Loss of habitat complexity has also contributed to the decline of steelhead. For example, in national forests in Washington, there has been a 58-percent reduction in large, deep pools due to sedimentation and loss of pool-forming structures such as boulders and large wood (FEMAT, 1993). Similarly, in Oregon, the abundance of large, deep pools on private coastal lands has decreased by as much as 80 percent (FEMAT, 1993). Sedimentation from land use activities is recognized as a primary cause of habitat degradation in the range of west coast steelhead, including the northern California steelhead ESU.

Steelhead are not generally targeted in commercial fisheries. High seas driftnet fisheries in the past may have contributed slightly to a decline of this species in local areas, but could not be solely responsible for the large declines in abundance observed along most of the Pacific coast over the past several decades.

Steelhead support an important recreational fishery throughout most of their range. During periods of decreased habitat availability (e.g., drought conditions or summer low flows when fish are concentrated), the impacts of recreational fishing on native anadromous stocks may be heightened.

Although harvest of steelhead in the Northern California ESU was not originally identified as a major factor for decline (NMFS 1996), NMFS is concerned about the impacts of recreational angling because of depressed steelhead population levels and the lack of reliable abundance and trend data for accurately assessing the status of individual populations and the ESU as a whole. Because of NMFS' concerns about recreational angling impacts to naturally reproduced steelhead populations in coastal watersheds in California north of the Russian River, the California Department of Fish and Game (DFG) proposed and the California Fish and Game Commission adopted new steelhead angling regulations in 1998 for all watersheds in the Northern California ESU. These new regulations prohibited retention of naturally spawned adult steelhead; eliminated fishing for juvenile steelhead in tributary streams; minimized impacts on juvenile steelhead in mainstem rearing and migratory areas through a combination of gear restrictions and delayed seasonal openings; prohibited retention of summer steelhead during their upstream migration and prohibited fishing in their summer holding areas; and provided for directed harvest and retention of hatchery-produced steelhead which are fully marked state-wide. NMFS (1998b,c,d) analyzed these new regulations and concluded that they would substantially reduce fishing effort and reduce mortality to that associated with catch-and-release of naturally produced steelhead in the Northern California ESU. These regulations remain in effect and are enforced by DFG.

Infectious disease is one of many factors that can influence adult and juvenile steelhead survival. Steelhead are exposed to numerous bacterial, protozoan, viral, and parasitic organisms in spawning and rearing areas, hatcheries, migratory routes, and the marine environments. Specific diseases such as bacterial kidney disease, ceratomyxosis, columnaris, furunculosis, infectious hematopoietic necrosis virus, redmouth and black spot disease, erythrocytic inclusion body syndrome, and whirling disease, among others, are present and are known to affect steelhead and salmon (Rucker et al ., 1953; Wood, 1979; Leek, 1987; Foott et al., 1994; Gould and Wedemeyer, undated). Very little current or historical information exists to quantify changes in infection levels and mortality rates attributable to these diseases for steelhead. However, studies have shown that naturally spawned fish tend to be less susceptible to pathogens than hatchery-reared fish (Buchanon et al ., 1983; Sanders et al., 1992).

Introductions of non-native species and habitat modifications have resulted in increased predator populations in numerous river systems, thereby increasing the level of predation experienced by salmonids. In the Northern California steelhead ESU, predation from Sacramento pikeminnow that were released into the Eel River is a major problem. Predation from pikeminnow is discussed in more detail in NMFS (1996). DFG is engaged in an aggressive campaign to control pikeminnow predation in the Eel River. Ongoing efforts to implement improved downstream flow releases from the Potter Valley hydroelectric project in the upper Eel River may assist the State in its efforts to control pikeminnow predation.

Predation by marine mammals is also of concern in some areas experiencing dwindling steelhead run sizes. NMFS (1997b) reviewed the available literature concerning the impacts of California sea lion and Pacific harbor seal predation on west coast anadromous salmonids, and concluded that there was insufficient data in all but one instance (i.e., Ballard Locks in Puget Sound) to conclude that pinnipeds were having a significant impact on wild salmon or steelhead populations. For this reason, and because of the high likelihood that impacts might be occurring, the study concluded that substantial additional research was needed to address this issue further. Based on this research recommendation, NMFS has initiated several field studies in coastal watersheds on the west coast designed to assess the magnitude of pinniped predation on individual salmon or steelhead populations. In California, these studies are being conducted in the lower Klamath River, Scott Creek, and the San Lorenzo River.

The Northwest Forest Plan (NFP) is a Federal land management policy with important benefits for west coast steelhead. While the NFP covers a very large area, the overall effectiveness of the NFP in conserving steelhead is limited by the extent of Federal lands and the fact that Federal land ownership is not uniformly distributed in watersheds that comprise individual ESUs. The extent and distribution of Federal lands limits the ability of the NFP to achieve its aquatic habitat restoration objectives at watershed and river basin scales, and highlights the importance of complementary salmon habitat conservation measures on non-federal lands within the subject ESUs.

Federal land ownership and management in the Northern California steelhead ESU is very limited; representing only 19 percent of the total land area. Federal lands (i.e., Redwood National Park, portions of Mendocino National Forest, and the Kings Range National Conservation Area) that do occur in this ESU are also highly fragmented, unlike some other steelhead ESUs (e.g., Klamath Mountains Province and Snake River Basin). Although Federal lands are limited in extent and fragmented in this ESU, NMFS believes that implementation of the NWFP on Mendocino National Forest lands (upper reaches of Eel and Mad Rivers) and implementation of other habitat protections in Redwood National Park (lower reach of Redwood Creek) will provide some limited benefits to steelhead. Nevertheless, long-term habitat protection and the key to achieving properly functioning habitat conditions in this ESU continues to be improvement in non-Federal land management, particularly those lands used for timber harvest.

Because listed coho salmon occur on Federal lands in the Northern California steelhead ESU, NMFS routinely engages the U.S. Forest Service, Bureau of Land Management, and Redwood Creek National Park in ESA section 7 consultations to ensure that ongoing or proposed activities do not jeopardize coho salmon or adversely modify its critical habitat. Through this section 7 consultation process, NMFS ensures that the NFP and other protective measures are fully implemented on Federal lands that occur in this ESU. These measures are also expected to benefit steelhead.

The Pacific Gas and Electric Company's (PG&E) Potter Valley hydroelectric project is a major diverter of water from the mainstem Eel River, which is located in the Northern California ESU. This water is diverted into the Russian River basin to generate hydroelectric power and provide water for agriculture and urban uses. Pursuant to a Federal Energy Regulatory Commission (FERC) licensing requirement, PG&E implemented a 10-year monitoring program in the Eel River for the purpose of developing recommendations for modifying the flow release schedule and other project facilities and/or operations necessary to protect and maintain fishery resources, including steelhead. This study was completed in 1996, as was construction of a $14 million dollar fish screen facility at the Van Arsdale Dam diversion on the Eel River. Based on the results of the monitoring study, PG&E has developed a proposal for project operations that, along with several others, are the subject of National Environmental Policy Act review for ongoing FERC license amendment proceedings. FERC is currently conducting environmental review of this proposal with input from NMFS, DFG and the U.S. Fish & Wildlife Service (USFWS). Implementation of an alternative that provides additional instream flows in the Eel River, and provides for Sacramento pikeminnow control, in conjunction with the new fish screening facility, would be expected to improve habitat quality and benefit steelhead in this ESU by increasing survival.

On March 1, 1999, the Pacific Lumber Company, the State of California, the Department of the Interior, and the Department of Commerce entered into a complex land purchase, land exchange and Habitat Conservation Plan (PALCO HCP) transaction covering the Headwaters Forest, Elk Head Springs Forest and the remainder of Pacific Lumber Company's land holdings in Humboldt County California. The Federal and state governments acquired approximately 10,000 acres of conifer and hardwood forest, over 3,000 acres of which is ancient redwoods, some of which are over 1,000 years old. This land is now subject to Federal and state control under conservation easements.

The PALCO HCP, which has a 50-year term, covers 211,000 acres of non-Federal land timber lands in several drainages that occur in the northern portion of Northern California steelhead ESU. These include portions of several tributaries to Humboldt Bay (Elk River, Jacoby Creek, Freshwater Creek, and Salmon Creek), and portions of the Van Duzen River (including Yager Creek), Eel River, Bear River, Salt River, and Mattole River watersheds. The PALCO HCP affects the following federally listed and candidate anadromous salmonid ESUs: (1)Southern Oregon/Northern California coho salmon (threatened), (2) Northern California steelhead (candidate), and (3) California Coastal Chinook salmon (threatened). The HCP also covers numerous terrestrial species listed under the ESA and California Endangered Species Act.

The PALCO HCP's Operating Conservation Program (Program) contains the conservation and management measures and prescriptions necessary to minimize, mitigate, and monitor the impacts of take of the covered species resulting from timber operations. The Program incorporates specific conservation plans for all terrestrial and aquatic species covered under the HCP, along with measures to conserve habitat diversity and structural components.

An Aquatics Conservation Plan (ACP) is an integral part of the overall Program. The goal of the ACP is to maintain or achieve over time properly functioning aquatic habitat conditions, which are essential to the long-term survival of salmonids. The reduction in land management impacts and habitat improvement that will be realized through implementation of the ACP will also benefit other species.

Monitoring for implementation, effectiveness, and trends is a critical component of the Program. The monitoring component includes an independent third-party monitor to determine if the provisions of the aquatics plan are effective and whether the aquatic habitat is responding as expected. There is also a provision for adaptive management if the results are not as predicted.

NMFS believes that the conservation measures contained in the HCP will protect and provide for long-term conservation of steelhead populations occurring on PALCO lands in the Northern California ESU.

The California Department of Forestry and Fire Protection (CDF) enforces California's forest practice rules (FPRs) on non-Federal (private and State managed forests) lands. These rules are promulgated through the State Board of Forestry (BOF). Timber harvest activities have been documented to result in adverse effects on streams and stream side zones including the loss of large woody debris, increased sedimentation, loss of riparian vegetation, and the loss of habitat complexity and connectivity (NMFS 1996).

The vast majority of freshwater habitat in the Northern California steelhead ESU (approximately 81 percent of total land) is on non-Federal lands, with the majority being privately owned. For the major river basins in this ESU (i.e. Redwood Creek, Mad River, Eel River, Mattole River, Ten Mile River, Noyo River, Big River, Albion River, Navarro River, Garcia River, and Gualala River), private forest lands average about 75 percent of the total acreage, with a range of 42 percent (Eel River) to 94 percent (Gualala River).

NMFS reviewed the California FPRs as part of its listing determination for the Northern California steelhead ESU (53 FR 13347; March 19, 1998). That review concluded that although the FPRs mandate protection of sensitive resources such as anadromous salmonids, the FPRs and their implementation and enforcement do not accomplish this objective. Specific problems with the FPRs include: (1) protective provisions that are not supported by scientific literature; (2) provisions that are scientifically inadequate to protect salmonids including steelhead; (3) inadequate and ineffective cumulative effects analyses; (4) dependence upon registered professional foresters that may not possess the necessary level of multi-disciplinary technical expertise to develop timber harvest plans (THPs) protective of salmonids; (5) dependence by CDF on other State agencies to review and comment on THPs; (6) failure of CDF to incorporate recommendations from other agencies; and (7) inadequate enforcement due to staffing limitations. NMFS further concluded that until a comprehensive scientific peer review process was implemented and appropriate changes to the FPRs and the THP approval process were made, properly functioning habitat conditions would not be ensured on non-Federal lands in the Northern California steelhead ESU.

The NMFS/California MOA which was entered into in March 1998 to ensure the conservation of north coast steelhead in California contained specific provisions to address NMFS' concerns over the California FPRs. In the NMFS/California MOA, the State committed to: (1) conduct a scientific review of the State's FPRs, including their implementation and enforcement; (2) make appropriate changes in implementation and enforcement of the FPRs based on this review; and (3) make recommendations to the BOF for changes in the FPRs if they were found to be necessary for the conservation of Northern California coastal anadromous salmonids. Full implementation of these provisions in the NMFS/California MOA, including implementation of changes in the FPRs by January 1, 2000, was a critical factor in NMFS's decision to not list this ESU.

In accordance with these provisions, a subcommittee of the state's scientific review panel for its Watershed Protection Program was appointed to undertake an independent review of the FPRs. The subcommittee's review and recommendations were completed and presented to the BOF in June 1999. The scientific review panel concluded that California's FPRs, including their implementation through the timber harvest plan process, do not ensure protection of anadromous salmonid populations. Based in part on the scientific review panel report and findings in July 1999, the California Resources Agency and CalEPA jointly presented the BOF with a proposed rule change package designed to address shortcomings in the state's existing FPRs. The BOF circulated the proposed rule package for public review, held several meetings and two public hearings on the proposals from July until October 1999, but failed to take action to adopt any of the proposed FPR changes.

As a result of the listing of coho salmon in coastal watersheds in northern California, the counties of Del Norte, Siskiyou, Trinity, Humboldt, and Mendocino developed and have implemented a multi-county, regional approach to assessing and improving county-controlled activities in order to enhance the quality and increase the quantity of salmonid habitat that is potentially affected by those county activities. NMFS and the State of California have contributed funding to this multi-county planning effort.

This county-level conservation planning approach involves a thorough review of general plans, ordinances, procedures, practices, and policies developed and implemented at the county level. Through the assessment and evaluation of these county-controlled mechanisms, a process is being developed that will enable the counties to exert control at the local level over human activities that can adversely affect anadromous salmonid populations and habitat. This multi-county planning effort culminated in a Memorandum of Agreement (Multi-County MOA) which was signed by all five counties in late 1997. Under the terms of the Multi-County MOA, the counties agreed to embark on a cooperative planning and restoration effort; assess the adequacy of existing general plans, county policies and practices, zoning and other land use ordinances; review county management procedures that affect anadromous salmonid habitat in each county; recommend changes to specific county ordinances and/or practices as necessary; develop a watershed-based education and technical assistance/training program for local agencies and decision-makers that will foster better understanding of the linkages between land use and county maintenance practices and salmonid habitat; and seek to establish some form of regulatory recognition at the state and/or Federal level.

This multi-county assessment is being used to document the effectiveness of existing regulations. Where the assessment identifies areas for improvement, the planning effort will develop alternative policies, ordinances and practices that are suitable for maintaining or enhancing anadromous salmonid habitat. The assessment will address the need to focus public works projects on sites that improve fisheries habitat. A watershed-based approach will be used, even where watersheds cross county boundaries, to ensure that enhancement efforts are complementary to natural ecosystem processes.

The outcome of this county-level effort is expected to be a comprehensive and coordinated analysis of local land use regulations. Where it is found that development standards such as subdivision restrictions, zoning, and capital improvement programs may not adequately maintain or restore salmonid habitat, model ordinances will be developed for consideration by each of the participating counties. Conversely, innovative approaches for land use (such as density modifications and standards that preserve habitat functions) developed by some counties will be presented as options for the other counties. This collaborative, regionally based planning effort is designed to be complementary with state and national salmonid recovery efforts. The planning process encourages public participation through direct contact with interested public agencies, landowners, community organizations, environmental groups, industry representatives, and others. The public process is being implemented through public hearings, meetings, scoping sessions, forums and other avenues.

Agricultural activity has had multiple and often severe impacts on salmonid habitat. These include depletion of needed flows due to irrigation withdrawals; blocking of fish passage by diversion or other structures; destruction of riparian vegetation and bank stability by grazing or cultivation practices; and channelization resulting in loss of side-channel and wetland-related habitat (NMFS, 1996).

Impacts from agricultural and grazing practices have not historically been closely regulated in California. This is an important concern to NMFS because a significant portion of the acreage in the Northern California ESU is comprised of farmland. For example, farmland constitutes approximately 25-30 percent of the total acreage of Humboldt and Mendocino counties, which in turn constitutes much of the Northern California ESU. Private lands, and public lands not administered by the Federal government, are now being addressed by the California Rangeland Water Quality Management Program (CRWQMP), which was adopted by the State Water Resources Control Board and CDF in 1995. The CRWQMP is a water quality improvement program based on the voluntary participation of landowners for compliance with state and federal non-point source pollution reduction requirements. The CRWQMP was initiated as a cooperative effort among the livestock industry, conservation organizations, and state and Federal agencies, to address the impacts of grazing and land use practices on water quality in streams that flow through private property. Through this program, private landowners will be able to maintain rangeland productivity and enhance landowners' abilities to manage these lands in a manner that maintains water quality standards necessary for the survival and recovery of listed salmonids.

Between 1995-1998, rangeland plans were developed under the CRWQMP for more than 250,000 acres on the north coast, ranging from San Francisco to the Oregon border. The State plans to review the implementation status of these plans at intervals of 3,5 and 10 years, provided that sufficient resources are available. NMFS is encouraged by these ongoing efforts. Plans that are consistent with this guidance are likely to result in meeting state water quality standards, but the program is voluntary and it is uncertain to what extent their implementation will contribute to improved habitat conditions and riparian function.

The USDA Natural Resources Conservation Service (NRCS), NMFS, USFWS, the U.S. Environmental Protection Agency (EPA), the California Association of Resource Conservation Districts (CARCD), and the State of California have recently developed a joint approach that is expected to encourage the voluntary use of improved conservation management practices for agriculture on private land. Recognizing that recovery of listed and other at-risk salmonid populations depends on the willing participation of private landowners, these agencies have the goal of providing an incentive to landowners to enhance the quality and quantity of habitat needed by species of concern. To accomplish this goal, the agencies have agreed to support cooperative approaches and consensus-building activities, foster communication among agencies and private landowners, share resources and information, and establish strong, effective working relationships that instill trust and promote sound stewardship.

This agreement is the subject of a draft Memorandum of Understanding (MOU) among the partner agencies. Through the procedures described in the MOU, practices contained in the NRCS Field Office Technical Guides (FOTG) will undergo ESA section 7 review by NMFS and USFWS. For those practices that NMFS and USFWS determine are not likely to adversely affect listed species or critical habitat, the landowner should have confidence that those practices, if implemented in accordance with the FOTG standards and specifications, will not result in any additional permitting requirement or penalties under the ESA. The objective of this MOU is to encourage the adoption of protective land use practices on private lands, to provide some regulatory assurance for landowners, to improve habitat conditions for sensitive species, to continue sustainable economic production on private lands, to facilitate better coordination among the partner agencies, and to foster better awareness and support for conservation programs throughout the State.

The next step in the NRCS MOU process will be to incorporate the specific interests of the State of California. The current draft MOU lacks language describing the roles and responsibilities of the State. The draft MOU is under review by the state and upon completion is expected to be formally signed by all parties.

The Army Corps of Engineers (COE) regulates removal/fill activities under section 404 of the Clean Water Act (CWA), which requires that the COE not permit a discharge that would “cause or contribute to significant degradation of the waters of the United States.” One of the factors that must be considered in this determination is cumulative effects. However, the COE guidelines do not specify a methodology for assessing cumulative impacts or how much weight to assign them in decision-making. Furthermore, the COE does not have in place any process to address the additive effects of the continued development of waterfront, riverine, coastal, and wetland properties.

The COE, state, and local governments have developed and implemented procedures reviewing, approving, and monitoring gravel mining activities in Del Norte and Humboldt counties which are authorized under a Letter of Permission (LOP) process. This process regulates gravel mining in a substantial portion of the Northern California ESU (including the Mad, Eel and Van Duzen Rivers) where listed coho salmon and chinook salmon populations also occur. These procedures are designed to provide substantially improved protection for anadromous salmonids and their habitats, including steelhead. Important elements of the process include: a prohibition on gravel mining in the active channel and on trenching except in limited instances, a restriction on gravel operations to the dry season, monitoring of channel cross sections to detect changes in channel morphology and habitat conditions, fisheries monitoring, and gravel mining on a sustained yield basis. An additional element of the process in Humboldt County is the participation of an independent scientific review committee, which makes annual recommendations on gravel extraction limits and site design features in order to minimize adverse impacts. Additionally, any channel crossings must be designed to allow for fish passage. NMFS participated in the development of these procedures and has concluded, through section 7 consultation with the COE, that these procedures will not jeopardize the continued existence of coho salmon or steelhead. NMFS recently reinitiated formal consultation with the COE on the LOP process to address the final critical habitat designation for coho salmon and the recent listing of California Coastal chinook salmon as threatened.

Section 1603 of the California Fish and Game Code requires that any person who proposes a project that will substantially divert or obstruct the natural flow or substantially change the bed, channel or river bank of any river, stream or lake, or use materials from a streambed, notify the DFG before beginning any work. The authorization for these activities under section 1603 is called a Lake or Streambed Alteration Agreement. Beginning May 1, 1999, the 1603 process was significantly modified to require a higher level of review by DFG that is in compliance with the California Environmental Quality Act (CEQA). Any proposed project that DFG determines may substantially adversely affect existing fish and wildlife resources will need to comply with the CEQA standard of mitigating project impacts to the level of insignificance. The new standard for project review has resulted in increasing the time needed for project approval from 2 weeks to 60-120 days.

Although the state has substantially improved the level of project review under the 1603 process to comply with the new CEQA standard, the state has not submitted the program to NMFS for review to determine whether it adequately protects anadromous salmonids. The state currently issues 1603 streambed alteration agreements to project applicants with the disclosure that the applicant may still need to obtain incidental take authorization from NMFS. In most cases, however, where a project proposes a stream or watercourse modification and listed species are present, a Clean Water Act, section 404 permit from the COE is required. Within the geographic area encompassing the Northern California steelhead ESU, the presence of listed coho and chinook salmon populations requires the COE to consult with NMFS under section 7 of the ESA prior to the issuance of 404 permits.

Under Clean Water Act section 303(d), states, territories, and authorized Tribes are required to establish lists of impaired water bodies, set priorities for addressing the pollutant source, and write pollutant control plans to achieve and maintain water quality standards. These plans, Total Maximum Daily Loads (TMDLs), provide an effective mechanism for determining the causes of water body impairment, quantifying the various pollutant sources, and setting targets for reducing pollutant discharges. Generally, states are responsible for developing TMDLs and related implementation plans, which are subject to EPA review and approval. If the EPA disapproves a TMDL or if a state fails to establish one, the EPA is required to step in and establish the TMDL. The TMDL is then implemented through existing regulatory and non-regulatory programs to control, reduce, or eliminate pollution from both point and non-point sources.

The TMDL process provides a flexible assessment and planning framework for identifying load reductions or other actions needed to attain water quality standards such as protection of aquatic life, provision of safe drinking water, etc. The TMDL should address all significant stressors (e.g., chemicals, temperatures, sediment loads) that cause or threaten to cause deleterious effects to water quality. The TMDL assessment is the sum of the individual waste load allocations from point sources, non-point sources, natural sources, and an appropriate margin of safety to account for uncertainty. The TMDL may address single or multiple pollutants but must clearly identify the links between the water quality impairment (or threat) of concern, the causes of the threat or concern, and the load reductions or conservation actions needed to remedy or prevent the impairment.

As TMDL assessments and implementation plans are developed and approved, the State of California, through the State Water Resources Control Board and the nine Regional Water Quality Control Boards, will adopt and implement the TMDLs. The TMDL contains a problem statement, numeric targets, source analysis, allocations of loads or controls, and a monitoring plan. The implementation component includes descriptions of land management practices, remediation activities, and restoration projects necessary to attain the goals established in the TMDL assessment. It is through the implementation plan that necessary controls and restoration actions are assigned to specific parties and attainment schedules are promulgated.

In coastal watersheds of northern California, 38 water body segments have been identified as impaired and have been scheduled for development of TMDLs. The schedule for development of TMDLs in northern California extends to the year 2011 (Russian River and Lake Pillsbury). The schedule in this area is driven in part by a consent decree (Pacific Coast Federation of Fishermen's Associations, et al. v. Marcus , No. 95-4474 MHP, March 11, 1997). Under this consent decree, EPA agreed to oversee the development of TMDLs on 18 rivers on the north coast of California, 12 of which are located within the Northern California steelhead ESU.

The consent decree establishes a schedule for developing TMDL criteria for listed rivers. Under this schedule, seven river basins in the Northern California ESU would have TMDLs developed within the next 2 years, with the remaining rivers having TMDLs developed by 2002. This legally-binding schedule is expected to result in significant progress on improving the beneficial uses of these watersheds, where the beneficial use has been identified as habitat for salmonids.

On May 28, 1998, the North Coast Regional Water Quality Control Board approved a TMDL for the Garcia River. The TMDL contains the following elements: (1) Findings that the Garcia River is impaired due to sediment and temperature impacts resulting from land use practices, primarily timber operations and related activities; (2) adoption of the Water Quality Attainment Strategy as part of the Water Quality Control Plan for the North Coast Region (Basin Plan) that would eliminate 90 percent of total controllable road-related sediment sources within 20 years and 50 percent of controllable upslope sediment sources within 40 years; (3) numeric targets including specified numerical values for percent fine sediments, frequency of pools in stream habitat profiles, and improving trends in large woody debris; (4) an implementation plan which specifies that either default prescriptions be observed or a site-specific plan be implemented that provides assurances that source reduction targets will be met; (5) assurances that sediment reduction or control goals are capable of being met and that site-specific planning and implementation by landowners provides a flexible framework; and (6) a monitoring plan to verify that conservation practices are implemented and are effective.

The TMDL process provides a flexible, adaptive management approach that relies on substantial public input and participation to set targets, identify protection measures, and implement and monitor corrective practices. The completion of the Garcia River TMDL, and the initiation of TMDLs for the other listed rivers, represents a significant step forward in improving watershed health for steelhead and other salmonids on the north coast of California. In the long-term, the development and implementation of these TMDLs should be beneficial for steelhead. However, their development and implementation will be difficult and it will take many years to assess their efficacy in protecting steelhead habitat. Furthermore, it is essential that the EPA consults with NMFS on the formulation of TMDLs in waters that contain listed salmonids. Such consultations will help ensure that TMDLs adequately address the needs of these species.

In an attempt to mitigate the loss of habitat and enhance fishing opportunities, extensive hatchery programs have been implemented throughout the range of steelhead on the west coast. While some of these programs have succeeded in providing fishing opportunities, the impacts of these programs on native, naturally reproducing stocks are not well understood. Competition, genetic introgression, and disease transmission resulting from hatchery introductions may significantly reduce the production and survival of native, naturally-reproducing steelhead (NMFS, 1996). Collection of native steelhead for hatchery broodstock purposes often harms small or dwindling natural populations. On the other hand, when properly managed, hatcheries can play an important role in steelhead recovery through carefully controlled supplementation programs.

In the past, non-native steelhead stocks have been introduced as broodstock in hatcheries and widely transplanted in many coastal rivers and streams in California (Bryant, 1994; Busby et al ., 1996; NMFS, 1997a). Because of problems associated with this practice, DFG has developed and implemented a Salmon and Steelhead Stock Management Policy. This policy recognizes that mixing of non-native stocks with native stocks is detrimental, and seeks to maintain the genetic integrity of all identifiable stocks of salmon and steelhead in California, as well as to minimize interactions between hatchery and natural populations.

NMFS's BRT identified the potentially adverse impacts of interactions between hatchery (Mad River hatchery) and wild steelhead as an important concern with regard to the Northern California ESU (NMFS, 1997a). As part of its strategic management plan for this ESU, DFG has implemented several changes in its hatchery practices. In addition, DFG has implemented several additional measures pursuant to the 1998 NMFS/California MOA. These hatchery management measures include: (1) marking of all hatchery steelhead released from the Mad River hatchery and all cooperative rearing facilities in the Northern California ESU; (2) continuation of long-standing hatchery management practices aimed at minimizing hatchery and wild steelhead interactions including prohibitions on stocking of resident trout in anadromous waters; releasing hatchery steelhead only at times, sizes and places that minimize impacts on naturally produced fish; only releasing hatchery fish that are determined to be healthy; (3) initiation of monitoring efforts intended to measure hatchery fish stray rates; and (4) a joint NMFS/DFG review of the Mad River hatchery including its stocking history, analysis of current broodstock, and its consistency with the strategic management plan for the Northern California ESU.

In conjunction with the improved hatchery management practices, in-river sport fisheries in the Northern California ESU now focus on harvest of marked, hatchery-produced steelhead, and sport fishing regulations have been modified to protect wild adult and juvenile steelhead.

Natural climatic conditions have exacerbated the problems associated with degraded and altered riverine and estuarine habitats. Persistent drought conditions have reduced already limited spawning, rearing and migration habitat. Climatic conditions appear to have resulted in decreased ocean productivity which, during more productive periods, may help offset degraded freshwater habitat conditions (NMFS, 1996a).

Section 4(b)(1)(A) of the ESA requires the Secretary of Commerce to make listing determinations solely on the basis of the best scientific and commercial data available after conducting a review of the status of the species and after taking into account efforts being made to protect the species. Therefore, in making its listing determinations, NMFS first assesses the status of the species and identifies factors that have lead to the decline of the species. NMFS then assesses conservation measures to determine if they ameliorate risks to the species.

In judging the efficacy of existing conservation efforts, NMFS considers the following: (1) The substantive, protective, and conservation elements of such efforts; (2) the degree of certainty such efforts will be reliably implemented; and (3) the presence of monitoring provisions that determine effectiveness and that permit adaptive management (NMFS, 1996b). In some cases, conservation efforts may be relatively new and may not have had time to demonstrate their biological benefit. In such cases, provisions for adequate monitoring and funding of conservation efforts are essential to ensure that intended conservation benefits are realized.

As part of its west coast steelhead status review, NMFS reviewed an array of protective efforts for steelhead and other salmonids, ranging in scope from regional strategies to local watershed initiatives. NMFS has summarized some of the major efforts in a document entitled “Steelhead Conservation Efforts: A Supplement to the Notice of Determination for West Coast Steelhead under the Endangered Species Act” (NMFS, 1996c). NMFS also reviewed conservation measures being implemented by the State of California for steelhead at the time of its final listing determination for the Northern California, Klamath Mountains Province, and Central Valley steelhead ESUs (63 FR 13347). The following sections update the current status of the State of California's conservation efforts for steelhead with particular emphasis on the Northern California steelhead ESU.

The State of California's conservation efforts that address steelhead in the Northern California ESU include: (1) development of the state's Watershed Protection Program, which includes funding and implementation of an expanded watershed planning and habitat restoration program; (2) implementation of the DFG's strategic management plan for the Northern California ESU; and (3) implementation of the 1998 NMFS/California MOA which addresses management of coastal steelhead in northern California. The status of these conservation efforts is discussed in more detail here.

In July 1997, California's Governor created the state's Watershed Restoration and Protection Council (WPRC) for the purpose of: (1) overseeing all state activities aimed at watershed protection and enhancement, including the conservation and restoration of anadromous salmonids in California; and (2) directing the development of a California Watershed Protection Program that would provide for the conservation of anadromous salmonids in the State of California. A working group of the WPRC issued a detailed report in December 1998 entitled “Protecting California's Anadromous Fisheries.” The Executive Order that established this program expired in January 1999. However, continued coordination of the program is occurring under the auspices of the California Biodiversity Council. NMFS is encouraged that the State initiated a comprehensive, watershed-based approach to salmon management and restoration, but the California Watershed Protection Program is still under development and has not been implemented as originally envisioned.

To support the Governor's WPRC and its efforts to develop a Watershed Protection Program, DFG implemented a $3 million Watershed Initiative in 1997-98 for coastal watershed projects north of San Francisco, through its Fishery Restoration Grants Program. These projects focused on watershed and riparian habitat restoration, instream habitat restoration, and watershed evaluation, assessment, planning, restoration project maintenance, and monitoring. Beginning in 1998-1999, DFG funded additional staff positions to assist in watershed planning efforts and grant proposal development.

A key element of the state's Watershed Protection Program that is also specified in the 1998 NMFS/California MOA is DFG's implementation of an expanded habitat restoration program for coastal salmonids, including steelhead. In 1997, the California legislature enacted Senate Bill 271 which provided DFG with $43 million over 6 years for habitat restoration and watershed planning to benefit anadromous salmonids in coastal watersheds, including the geographic area which encompasses the Northern California steelhead ESU. The program was initiated in 1997-98 and has expanded since that time. Based on the SB 271 legislation, funding is expected to continue through at least 2002. Substantial funding from this program has been committed to habitat restoration, enhancement, and watershed planning efforts within the Northern California steelhead ESU since 1997-98. Throughout Humboldt and Mendocino counties, which constitute much of the geographic area comprising the Northern California steelhead ESU, DFG has funded over 200 projects costing in excess of $7.5 million during the past 3 years (1997-98 through 1999-2000). NMFS participates as an ex-officio member of the Advisory Committee that reviews the distribution of SB 271 grant funding, to help ensure that available funds are spent on projects that will contribute to the conservation of listed salmonids, including north coast steelhead. In addition to the expanded habitat restoration program funded by SB 271, DFG has added additional staff positions to assist in administering the program, provide technical support in the development of watershed plans and habitat restoration projects, and implement a new steelhead monitoring and adaptive management program throughout coastal northern California.

In February 1998, DFG completed its strategic management plan for steelhead stocks in the Northern California ESU (DFG 1998). In March 1998, the state and DFG formally committed to implement this plan as part of the NMFS/California MOA. The plan describes existing and new management measures for recreational steelhead angling, steelhead hatchery programs, and steelhead monitoring, assessment, and adaptive management efforts in this ESU. In addition, the plan describes DFG's ongoing efforts to protect and enhance steelhead habitat within this ESU. These management measures were intended to provide immediate protection for steelhead populations in this ESU, while longer-term measures were implemented to protect anadromous fish habitat on non-federal lands through the Watershed Protection Program and the SB 271 habitat restoration program. The main elements of the Northern California steelhead strategic management plan are briefly discussed here.

The strategic management plan includes several harvest management actions which are intended to reduce impacts on adult and juvenile steelhead in the Northern California ESU. These include: (1) no retention of unmarked (i.e., naturally produced) adult and juvenile steelhead in all rivers and streams; (2) fishing closures in steelhead rearing tributaries to protect juveniles; (3) expanded closures in mainstem rivers through May to protect outmigrating juvenile steelhead; and (4) various gear and bait restrictions designed to reduce mortality associated with incidental hooking of steelhead.

In February and March 1998, the California Fish and Game Commission (Commission) adopted emergency changes to the State's inland fishing regulations which were intended to implement the harvest regulation changes contained in the Northern California steelhead strategic management plan. In conjunction with the final listing determination for this ESU in March 1998(63 FR 13347), NMFS reviewed these regulatory changes and concluded that they would substantially reduce impacts to adult and juvenile steelhead and also assist in the conservation of the ESU (NMFS 1998). These emergency regulations were formally enacted by the Commission in June 1998 following public review and comment, and they currently remain in place. NMFS believes that these angling regulations continue to provide the reduction in impacts and conservation benefits that were expected at the time the decision was made not to list this ESU in March 1998.

The strategic plan for the Northern California ESU contains a wide range of existing and new hatchery management measures that are intended to reduce the impacts of hatchery steelhead programs on wild steelhead populations in this ESU. Measures incorporated into the plan include: (1) release strategies that require a minimum 6 inches ( 15.2 cm) size and release at the hatchery rather than off-site; (2) marking of all hatchery-produced fish that are released and the implementation of spawner surveys to assess the extent to which hatchery fish stray into natural spawning areas; (3) a commitment to reduce hatchery releases or implement other changes in hatchery practices if significant straying of hatchery fish is found to occur; (4) a cap on hatchery production to current levels, regular health checks during each rearing cycle, and the destruction of diseased fish that cannot be effectively treated; (5) a review of the existing operating procedures for all cooperative rearing facilities permitted by the state; and (6) adoption of a requirement that all cooperative facilities develop and submit 5-year management plans to the State for approval. NMFS previously reviewed these existing and new hatchery management measures and concluded that they would substantially reduce potential impacts to wild steelhead (NMFS 1998d). Because of NMFS concerns regarding the operations of the the Mad River Hatchery which is located in this ESU, DFG also committed in the 1998 NMFS/California MOA to: (1) undertake a comprehensive review of the hatchery program, including its stocking history and genetic analysis of current broodstock; and (2) develop a plan to eliminate any adverse impacts of hatchery operations on Northern California steelhead if necessary.

DFG implemented a statewide mass-marking program for its hatchery steelhead programs beginning in 1997 which includes the hatchery steelhead programs in the Northern California steelhead ESU. DFG is also requiring all cooperative rearing programs that produce steelhead in this ESU to mark all released fish. This marking program has continued since its implementation in 1997 and DFG is committed to continuing this program into the future. DFG and the NMFS have also initiated a comprehensive review of DFG's hatchery programs in this ESU (Mad River Hatchery and cooperative rearing programs), with the objective of ensuring that these programs are compatible with the conservation of naturally produced steelhead. This review is expected to be completed in 2000. Comprehensive monitoring of stray rates for hatchery produced fish has not been implemented in this ESU, but DFG expects to begin a north coast steelhead stray rate monitoring program in 2000.

The strategic management plan for the Northern California ESU identifies ongoing and expanded monitoring programs to assess steelhead abundance. A commitment to implement these programs is contained in the 1998 NMFS/California MOA. A key element of this monitoring program was a commitment to establish a joint scientific and technical team including representatives from DFG and NMFS to design appropriate detailed monitoring programs for steelhead in this ESU. NMFS considered these monitoring efforts critically important given the uncertain status of steelhead populations in these ESUs, and indicated that adequate State funding was critical to implementing the program (63 FR 13347). As part of the NMFS/California MOA, both DFG and NMFS committed to seek adequate funding for this program. The DFG has taken significant steps to implement this expanded steelhead monitoring program in the Northern California steelhead ESU, but the full program has not yet been fully developed or implemented. The DFG has committed significant fiscal resources to hire and redirect existing staff resources to create a north coast steelhead monitoring team and program that will address the Northern California steelhead ESU as well as areas further north in California, and has established a scientific and technical team to guide development of this effort. Comprehensive monitoring proposals have been developed and are under review by the scientific and technical team. NMFS expects the finalized monitoring program for this ESU to be implemented in early 2000.

NMFS evaluated a wide range of conservation efforts that California had adopted or was in the process of developing in conjunction with its decision not to list the Northern California steelhead ESU (63 FR 13347). NMFS concluded that DFG's harvest and hatchery programs for this ESU would contribute to increasing escapement of adults, substantially reduce impacts on juveniles resulting in increased survival, and reduce adverse impacts of hatchery populations on wild fish. In the near-term, NMFS expected these measures would contribute to improved survival and population stability for steelhead. In addition, DFG's monitoring and adaptive management programs were expected to provide state and Federal managers with the ability to assess the status of steelhead populations and their response to harvest and hatchery management changes. However, NMFS was also concerned that California's habitat protection efforts, ( e.g. , development of a Watershed Protection Program and implementation of the expanded habitat restoration program established by SB 271), were not adequate to secure properly functioning habitat conditions for this ESU over the long-term. To address these concerns, NMFS entered into a MOA with the State (NMFS/California MOA 1998).

Under the terms of the NMFS/California MOA, the State committed to a broad range of measures including: (1) compliance with existing State regulations, with particular emphasis on the management measures contained in the strategic management plans for north coast steelhead; (2) implementation of harvest and hatchery management measures contained in the strategic management plan for Northern California steelhead; (3) implementation of a monitoring evaluation and adaptive management program for steelhead, including those elements contained in the strategic management plan for Northern California steelhead; (4) continued implementation of a California Watershed Protection Program, including the SB 271 watershed planning and habitat restoration program in coastal watersheds, and the joint review and revision of the State's forest practice rules (FPRs), in conjunction with a scientific review panel to ensure that the revised FPRs were adequate to conserve anadromous salmonids, including steelhead. As previously discussed, because of the preponderance of private timber lands and timber harvest activity in the Northern California ESU, NMFS considered this to be a critically important provision in the MOA.

Many of the provisions in the NMFS/California MOA relating to the Northern California steelhead ESU have been or are being implemented by the state; however, critically important provisions related to revision of the FPRs have not been implemented. The current status of the State's effort to implement the MOA, with particular regard to the Northern California steelhead ESU, is discussed here.

In accordance with section 4 of the NMFS/California MOA, DFG made recommendations to the Fish and Game Commission to implement detailed angling regulation changes contained in the strategic management plan for Northern California steelhead. The Commission adopted these recommendations on an emergency basis in February 1998 and permanent regulations became effective in August 1998. Within this ESU, these regulations specifically prohibit retention of naturally spawned adult steelhead, prohibit fishing for naturally produced juvenile steelhead in tributary streams, minimize the angling impacts on juvenile steelhead in mainstem rearing areas through gear/bait restrictions, prohibit retention of summer steelhead and prohibit fishing in their summer holding areas, and provide for the retention of marked, hatchery-produced steelhead.

In accordance with section 6 of the NMFS/California MOA, two provisions have been implemented. First, the DFG recommended and the Fish and Game Commission adopted permanent regulations that provide only for the retention of non-listed, hatchery-produced steelhead. Second, the DFG has implemented a statewide mass marking program for hatchery produced steelhead. This program was initiated with brood year 1997 steelhead released in winter 1998, and the marking program has continued annually since that time. This program has resulted in complete marking of all steelhead produced at the Mad River Hatchery which is located in this ESU. In addition, DFG is requiring that all cooperative rearing programs that produce steelhead mark them prior to release.

Three additional provisions contained in section 6 of the NMFS/California MOA have not yet been implemented, but are either in progress or will be initiated shortly. To date, DFG has not implemented a process for establishing recovery and strategic goals for north coast steelhead, including this ESU, nor has it initiated a monitoring program to measure stray rates of hatchery produced steelhead. However, the DFG has established a North Coast Steelhead Monitoring Program to develop and implement a monitoring program, which will include the Northern California steelhead ESU, and a joint scientific and technical team to provide guidance to the program. DFG has developed a preliminary monitoring program and is consulting the joint scientific and technical team to refine that program, and is exploring options for establishing recovery and strategic goals within this ESU. NMFS anticipates that this program will commence in 2000. Although the monitoring program specified in the NMFS/California MOA has not been fully implemented, DFG has continued to carry out several monitoring and research programs on the north coast, primarily in the Klamath Mountains Province ESU, which have provided data useful for the management of steelhead. Finally, NMFS and DFG have recently undertaken a state-wide review of the state's hatchery programs, including the Mad River Hatchery which in located in this ESU, as well as the state's cooperative rearing program which has a small number of projects within this ESU. This review is expected to be completed by June 2000.

In accordance with section 7 of the NMFS/California MOA, the DFG has implemented, at least in part, two key provisions. First, DFG has established a joint scientific and technical team to assist it with the development of a comprehensive monitoring program for steelhead on the north coast, including the Northern California ESU. The NMFS/California MOA called for this program to be developed by June 1998; however, as discussed in the preceding section, DFG has not yet completed development of the study plan or initiated a comprehensive monitoring program. Second, DFG has secured the necessary funding to establish a north coast steelhead monitoring program, including the dedication of professional staff and the acquisition of necessary equipment and facilities. A preliminary monitoring program plan has been developed by the monitoring program staff and this plan is currently under review by the joint scientific and technical team.

Section 9 of the NMFS/California MOA commits the State to continue development of its Watershed Protection Program, with a specific element addressing salmonid conservation, and to coordinate with NMFS in establishing a scientific review panel that would advise the State in its development of this program. In addition, Section 9 commits the state to direct personnel and fiscal resources to implement an expanded habitat restoration program in coastal watersheds using SB 271 funds. Details of the state's Watershed Protection Program and DFG's efforts to implement expanded watershed planning and habitat restoration in coastal watersheds were described previously (see Efforts Being Made to Protect West Coast Steelhead).

Section 9 of the NMFS/California MOA contains several measures relating to the review and revision of the State's FPRs because of NMFS's concerns regarding the effects of State-regulated timber harvest on freshwater habitat conditions for anadromous salmonids, including steelhead in the Northern California ESU. Specifically, the NMFS/California MOA calls for: (1) a joint review of the FPRs by NMFS and the State, including their implementation and enforcement; (2) the State to make appropriate changes in implementation and enforcement, if necessary; (3) the state, in consultation with NMFS, to make recommendations to the BOF for changes in the FPRs necessary to conserve anadromous salmonids; and (4) the BOF to complete action on the recommended changes in the FPRs by January 2000. Full implementation of these NMFS/California MOA provisions, including implementation of changes in the FPRs by January 1, 2000, was a critical factor in NMFS's decision to not list the Northern California steelhead ESU.

In accordance with these provisions, the state established a subcommittee of the scientific review panel for its Watershed Protection Program to undertake an independent review of the State's FPRs. In June 1999, this subcommittee submitted a report to the BOF which concluded that the state's FPRs, including their implementation through the timber harvest plan process, do not ensure protection of anadromous salmonid populations. Based in part on the scientific review panel's findings, the Secretaries of the California Resources Agency and CalEPA jointly presented a proposed package of FPR revisions to the BOF in July 1999 that was designed to address shortcomings identified by the scientific review committee. At its October 6-7, 1999, meeting, the BOF failed to take action to adopt the proposed rule changes, thereby eliminating to possibility of implementing improvements in California's FPRs by January 1, 2000.

The ESA defines an endangered species as any species in danger of extinction throughout all or a significant portion of its range, and a threatened species as any species likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. Section 4(b)(1) of the ESA requires that the listing determination be based solely on the best scientific and commercial data available, after conducting a review of the status of the species and after taking into account those efforts, if any, being made to protect such species.

In December 1997, the NMFS' BRT concluded that the Northern California steelhead ESU was likely to become endangered within the foreseeable future based on a review of the best available biological information (NMFS 1997). Based on a review of updated abundance and trend information that was available for this ESU, NMFS's Southwest Fisheries Science Center (NMFS/Tiburon Lab 1/2000), concluded that the current biological status of the ESU has changed little since it was last evaluated by NMFS' BRT. Updated abundance and trend data show small increases for winter and summer steelhead in the Eel River, but current abundance is well below estimates in the 1980s and even further reduced from levels in the 1960s. Redwood Creek summer steelhead abundance remains very low. There are no new data suggesting substantial increases or decreases in populations since the last updated status review was completed. The Eel River winter and summer steelhead populations, which represent the best available data set for this ESU, are still severely reduced from pre-1960s levels.

After taking into consideration state and Federal efforts for the conservation of steelhead, NMFS previously decided that threats to the ESU were sufficiently reduced that a listing of the Northern California steelhead ESU as threatened was unnecessary. The key Federal and state conservation measures which NMFS concluded reduced threats to this ESU were: (1) implementation of the NMFS/California MOA, with particular emphasis on the provisions intended to improve non-Federal forest land protections because of the predominance of non-Federal lands in the California portion of this ESU (81 percent non-Federal land); (2) substantial changes to in-river harvest regulations by California; and (3) general improvements in the ESU resulting from implementation of the DFG's strategic management plan for this ESU, the State's Watershed Protection Program, and other provisions in the NMFS/California MOA which serve to implement steelhead angling regulation changes, hatchery steelhead management changes, habitat protections and restoration, and expanded steelhead monitoring.

As previously discussed in this document, California has implemented several of the conservation measures that NMFS relied upon in making its decision not to list the Northern California ESU. Specifically, the state has enacted substantial changes to the state's in-river angling regulations in 1998 to protect coastal steelhead populations including steelhead in this ESU. These regulations, with slight modification, remain in effect, and NMFS believes they continue to provide the substantial protection and conservation benefits that were expected to occur at the time of the decision not to list this ESU. The State has also implemented, or begun to implement, several other conservation measures for this ESU, including extensive watershed planning and/or habitat restoration through the SB 271 program, marking of hatchery produced steelhead and other improvements in hatchery practices, and steelhead monitoring. Although implementation of some of these measures has been delayed, as is the case for the steelhead monitoring program, NMFS continues to believe that these efforts will collectively benefit steelhead in this ESU and will eventually contribute to an improved understanding of its status.

Although these conservation efforts are expected to benefit steelhead in this ESU, NMFS continues to believe that improved habitat protection and restoration of properly functioning freshwater habitat conditions for spawning, rearing, and migration are essential to the long-term survival and recovery of this ESU. Because Federal land ownership is both fragmented and limited in this ESU (approximately 19 percent of ESU), the key to achieving habitat protection and properly functioning habitat conditions in this ESU is the improvement of land management activities on non-Federal lands (approximately 81 percent of ESU). To ensure improved protection of habitat on non-Federal lands in this ESU, the NMFS/California MOA contained several provisions for the review and modification of the state's FPRs. Full implementation of these provisions, including implementation of changes in the FPRs by January 1, 2000, was a critical factor in NMFS's previous decision not to list this ESU. Because the State has failed to implement changes in the FPRs as called for in the NMFS/California MOA, critically important conservation measures are not being implemented to reduce the threats to this ESU from timber harvest activities on non-Federal lands. For this reason, NMFS concludes that the conservation measures fail to provide for the attainment of properly functioning habitat conditions necessary to provide for the long-term protection and conservation of this ESU.

Based on a review of the best available information, therefore, NMFS concludes that the Northern California steelhead ESU warrants listing as a threatened species at this time. In arriving at this determination, NMFS carefully considered the December 1997 scientific conclusions of the BRT regarding this ESU, the results of an updated status review for the ESU, and the current status of all Federal, state, and local conservation efforts directed at this ESU, including implementation of provisions for the NMFS/California MOA for steelhead.

NMFS has previously examined the relationship between hatchery and natural populations of steelhead in this ESU, and also assessed whether any hatchery populations are essential for their recovery. At this time, NMFS does not believe any specific hatchery populations warrant listing.

At this time, NMFS is only proposing to list the anadromous life forms of O . mykiss .

Section 4(d) of the ESA requires NMFS to issue protective regulations it finds necessary and advisable to provide for the conservation of threatened species. Section 9 of the ESA prohibits violations of protective regulations for threatened species promulgated under section 4(d). The 4(d) protective regulations may prohibit, with respect to the threatened species, some or all of the acts which section 9 of the ESA prohibits with respect to endangered species. These section 9 prohibitions and 4(d) regulations apply to all individuals, organizations, and agencies subject to U.S. jurisdiction. NMFS intends to develop and promulgate a 4(d) protective regulation for the Northern California steelhead ESU in a separate rulemaking. The process for completing the 4(d) rule will provide the opportunity for public comment on the proposed protective regulations.

In the case of threatened species, NMFS has flexibility under section 4(d) to tailor the protective regulations to provide for the conservation of the species. Even though existing conservation efforts and plans are not sufficient to preclude the need for listing at this time, they are nevertheless valuable for improving watershed health and restoring fishery resources. In those cases where well-developed, reliable conservation plans exist, NMFS may choose to incorporate them into the recovery planning process, starting with the protective regulations. For example, the interim 4(d) rule for the Southern Oregon/Northern California coho (62 FR 24588, May 7, 1997) does not prohibit habitat restoration activities conducted in accordance with approved plans, nor does it prohibit fisheries conducted in accordance with an approved state management plan. NMFS has recently proposed 4(d) regulations for all threatened ESUs of steelhead (64 FR 73479). Future 4(d) rules may contain limited take prohibitions applicable to activities such as forestry, agriculture, and road construction, when such activities are conducted in accordance with approved conservation plans.

Sections 7(a)(2) and 7(a)(4) of the ESA require Federal agencies to consult with NMFS to ensure that activities they authorize, fund, or conduct are not likely to jeopardize the continued existence of a listed species or a species proposed for listing, or adversely modify critical habitat or proposed critical habitat.

Examples of Federal actions likely to affect steelhead in the Northern California ESU include authorized land management activities of the U.S. Forest Service and Bureau of Land Management, operation of hydroelectric and storage projects permitted by FERC, and activities permitted by the COE. Such activities may include timber sales and harvest, permitting livestock grazing, hydroelectric power generation, and flood control. Other Federal actions, including the COE section 404 permitting activities under the CWA, COE permitting activities under the River and Harbors Act, FERC licenses for non-Federal development and operation of hydropower, and Federal salmon hatcheries, may also require consultation.

Sections 10(a)(1)(A) and 10(a)(1)(B) of the ESA provide NMFS with authority to grant exceptions to the ESA's “take” prohibitions. Section 10(a)(1)(A) scientific research and enhancement permits may be issued to entities (Federal and non-Federal) for scientific purposes or to enhance the propagation or survival of a listed species. NMFS has issued section 10(a)(1)(A) research/enhancement permits for listed chinook salmon and steelhead for a number of activities, including trapping and tagging, electroshocking to determine population presence and abundance, removal of fish from irrigation ditches, and collection of adult fish for artificial propagation programs.

Section 10(a)(1)(B) incidental take permits may be issued to non-Federal entities performing activities which may incidentally take listed species, so long as the taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. The types of activities potentially requiring a section 10(a)(1)(B) incidental take permit include the operation and release of artificially propagated fish by state or privately operated and funded hatcheries, state or academic research not receiving Federal authorization or funding, logging, road building, grazing, and diverting water onto private lands.

On July 1, 1994, NMFS, jointly with USFWS, published a series of policies regarding listings under the ESA, including a policy for peer review of scientific data (59 FR 34270) and a policy to identify, to the maximum extent possible, those activities that would or would not constitute a violation of section 9 of the ESA (59 FR 34272).

The intent of the peer review policy is to ensure that listings are based on the best scientific and commercial data available. Prior to a final listing, NMFS will solicit the expert opinions of at least three qualified specialists, concurrent with the public comment period. Independent peer reviewers will be selected from the academic and scientific community, Native American tribal groups, Federal and state agencies, and the private sector.

NMFS and USFWS published in the Federal Register on July 1, 1994 (59 FR 34272), a policy that NMFS shall identify, to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the ESA. The intent of this policy is to increase public awareness of the effect of this listing on proposed and ongoing activities within the species' range. At the time of the final rule for the Northern California steelhead ESU, NMFS will identify to the extent known specific activities that will not be considered likely to result in violations of section 9 once a 4(d) rule has been adopted, as well as activities that will be considered likely to result in violations. NMFS believes that, based on the best available information, the following actions will not be prohibited in a 4(d) rule and therefore will not result in a violation of section 9:

1. Possession of steelhead from any steelhead ESU listed as threatened which are acquired lawfully by permit issued by NMFS pursuant to section 10 of the ESA, or by the terms of an incidental take statement pursuant to section 7 of the ESA.

2. Federally funded or approved projects that involve activities such as silviculture, grazing, mining, road construction, dam construction and operation, discharge of fill material, stream channelization, or diversion, for which section 7 consultation has been completed, and when activities are conducted in accordance with any terms and conditions provided by NMFS in an incidental take statement accompanying a biological opinion.

Activities that NMFS believes could potentially harm steelhead in the Northern California ESU and therefore may be prohibited in a 4(d) rule applying section 9 take prohibitions, include, but are not limited to:

1. Land-use activities that adversely affect steelhead habitat in the proposed ESU (e.g., logging, grazing, farming, urban development, road construction in riparian areas and areas susceptible to mass wasting and surface erosion).

2. Destruction/alteration of steelhead habitat in the proposed ESU, such as removal of large woody debris and “sinker logs” or riparian shade canopy, dredging, discharge of fill material, draining, ditching, diverting, blocking, or altering stream channels or surface or ground water flow.

3. Discharges or dumping of toxic chemicals or other pollutants (e.g., sewage, oil, gasoline) into waters or riparian areas supporting steelhead in the proposed ESU.

4. Violation of discharge permits.

5. Pesticide applications.

6. Interstate and foreign commerce of steelhead from the proposed ESU and import/export of steelhead from any ESU without a threatened or endangered species permit.

7. Collecting or handling of steelhead from the proposed ESU. Permits to conduct these activities are available for purposes of scientific research or to enhance the propagation or survival of the species.

8. Introduction of non-native species likely to prey on steelhead in the proposed ESU or displace them from their habitat.

These lists are not exhaustive. They are intended to provide some examples of the types of activities that might or might not be considered by NMFS as constituting a take of steelhead in the Northern California ESU under the ESA and its regulations. Questions regarding whether specific activities will constitute a violation of the ESA section 9 take prohibitions, and general inquiries regarding prohibitions and permits, should be directed to NMFS (see ADDRESSES ).

Section 4(a)(3)(A) of the ESA requires that, to the maximum extent prudent and determinable, NMFS designate critical habitat concurrently with a determination that a species is endangered or threatened. While NMFS has completed its initial analysis of the biological status of steelhead in the Northern California ESU, it has not performed the full analysis necessary for designating critical habitat at this time. It is NMFS' intent to develop a critical habitat proposal for this ESU within the next year as soon as the analysis can be completed.

NMFS has exercised its best professional judgement in developing this proposal to list the Northern California steelhead ESU. To ensure that the final action resulting from this proposal will be as accurate and effective as possible, NMFS is soliciting comments and suggestions from the public, other governmental agencies, the scientific community, industry, and any other interested parties. NMFS is interested in any additional information concerning: (1) biological or other relevant data concerning any threats to steelhead in this ESU; (2) the range, distribution, and population size of steelhead in this ESU; (3) current or planned activities in the proposed ESU and their possible impact on steelhead; (4) steelhead escapement, particularly escapement data partitioned into natural and hatchery components; (5) the proportion of naturally reproducing fish that were reared as juveniles in a hatchery; (6) homing and straying of natural and hatchery fish; (7) the reproductive success of naturally reproducing hatchery fish (i.e., hatchery-produced fish that spawn in natural habitat) and their relationship to proposed ESU; (8) efforts being made to protect native, naturally reproducing populations of steelhead in this ESU; and (9) suggestions for specific regulations under section 4(d) of the ESA that should apply to steelhead in this ESU. Suggested regulations may address activities, plans, or guidelines that, despite their potential to result in the take of listed fish, will ultimately promote the conservation and recovery of threatened steelhead.

NMFS will review all public comments and any additional information regarding the status of the Northern California steelhead ESU and will complete a final rule within 1 year of this proposed rule, as required under the ESA. The availability of new information may cause NMFS to reassess the status of this ESU.

Joint Commerce-Interior ESA implementing regulations state that the Secretary “shall promptly hold at least one public hearing if any person so requests within 45 days of publication of a proposed regulation to list * * * or to designate or revise critical habitat.” (see 50 CFR 424.16(c)(3)). A public hearing schedule on this proposal is contained in this notice. A public hearing will provide the opportunity for the public to give comments and to permit an exchange of information and opinion among interested parties. NMFS encourages the public's involvement in such ESA matters. Written comments on the proposed rule should be submitted to NMFS (see ADDRESSES ).

A complete list of all cited references is available upon request (see ADDRESSES ).

The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in Pacific Legal Foundation v. Andrus , 675 F. 2d 825 (6th Cir. 1981), NMFS has concluded that ESA listing actions are not subject to the environmental assessment requirements of the National Environmental Policy Act (NEPA). See NOAA Administrative Order 216-6.

As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of species. Therefore, the economic analysis requirements of the Regulatory Flexibility Act (RFA) are not applicable to the listing process. In addition, this final rule is exempt from review under Executive Order 12866.

In keeping with the intent of the Administration and Congress to provide continuing and meaningful dialogue on issues of mutual State and Federal interest, NMFS has conferred with State and local government agencies in the course of assessing the status of the Northern California steelhead ESU, and considered, among other things, state and local conservation measures. State and local governments have expressed support both for the conservation of the Northern California steelhead ESU and for activities that affect this ESU. The history and content of this dialogue, as well as the basis for this proposed action, is described in the SUPPLEMENTARY INFORMATION section of this document, and in other Federal Register documents preceding this proposed action. (See 61 FR 41541, August 9, 1996; 62 FR 43974, August 18, 1997; and 63 FR 13347, March 19, 1998). NMFS staff have had numerous discussions with various governmental agency representatives regarding the status of this ESU, and have sought working relationships with agencies and others in order to promote salmonid restoration efforts. In addition, NMFS' staff have given presentations to interagency forums and other interested groups considering conservation measures. As the process continues, NMFS intends to continue engaging in informal and formal contacts with affected state, local or regional entities, giving careful consideration to all written or oral comments received. As one part of that continued process, NMFS has scheduled public hearings on this proposed action. NMFS also intends to consult with appropriate elected officials in the establishment of a final rule.

At this time NMFS is not promulgating protective regulations pursuant to ESA section 4(d) or proposing to designate critical habitat. Prior to finalizing 4(d) regulations for this ESU, or proposing to designate critical habitat, NMFS will comply with all relevant NEPA and RFA requirements.

Endangered and threatened species, Exports, Imports, Marine mammals, Transportation.

For the reasons set forth in the preamble, 50 CFR part 223 is proposed to be amended as follows:

On February 4, 2000 (65 FR 5488), NMFS published notification of the Council's intention to prepare Amendment 10 to the Atlantic Sea Scallop FMP. See the February 4, 2000, Federal Register notification for background and scoping information related to Amendment 10 and for the public meeting schedule. NMFS is extending the period to submit written comments from March 1, 2000, to March 6, 2000.

On February 2, 2000 (65 FR 4941), NMFS published notification of the Council's intention to prepare an FMP for deep-sea red crab and to prepare an EIS, if necessary. See the February 2, 2000, Federal Register notification for background and scoping information related to this action and for the public meeting schedule. NMFS is extending the period for submission of written comments from February 21, 2000, to March 3, 2000.

This meeting is being convened to give the public in American Samoa the opportunity to comment on a revised framework measure under the Council's Fishery Management Plan for the Pelagic Fisheries of the Western Pacific region. In December 1997, at its 94th Meeting, the Council voted to recommend a closed area from which large (greater than 50 ft (15.24 m)) pelagic fishing vessels would be excluded to protect the small vessel longline fishery in American Samoa. That proposed revision was adopted under the two-meeting framework process. The measure would have established a 50-nm closure to pelagic fishing vessels larger than 50 ft (15.24 m) around Tutuila and Manua Islands, and a 30-nm closure around Swain's Atoll. The recommended closure was sent to the NMFS Southwest Regional Administrator in October 1998 but was disapproved in March 1999, with the advice that it could be re-submitted if amended to include greater justification for closed areas under National Standard 8 of the Magnuson-Stevens Fishery Conservation and Management Act.

Subsequently a revision of the framework measure has been drafted that includes a preferred alternative to implement a 50-nm closure to pelagic fishing vessels larger than 50 ft (15.24 m) around Tutuila and Manua Islands, and a 30-nm closure around Swain's Atoll. The Council will take final action on this framework measure at its 102nd meeting which will be held between February 28 and March 2, 2000, in Honolulu, HI.

This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ray Tulafono, 684-633-4456 (voice), or 684-633-5944 (fax), at least 5 days prior to the meeting date.

The SSC will discuss and may make recommendations to the Council on the agenda items listed here. The order in which agenda items will be addressed is subject to change.

1. Bottomfish fishery

2. Crustaceans fishery

a. Harvest Guideline

3. Precious corals fishery

4. Location of the catch

1. Review of Council's preferred alternative

a. Fishing permit and reporting

b. Restrictions of gear and methods

c. Marine Protected Areas

d. Framework provisions

e. Process for Plan Team (PT) coordination

2. Review of comments from region-wide public meetings

3. Federal initiatives

a. Congressional coral reef bills

b. U.S. Coral Reef Task Force action plan

4. Agency research plans for coral reefs

a. Federal (NMFS, Fish and Wildlife Service (FWS))

b. State/territories/Commonwealth of the Northern Mariana Islands (CNMI)

1. Concerns regarding existing fisheries

a. Status of monk seals

b. Marine Mammal Commission

c. Monk Seal Recovery Team

d. ECOSIM (ecological simulation) model

e. Agencies (NMFS, Coral Reef Task Force, FWS, Department of Land and Natural Resources, U.S. Navy/U.S. Coast Guard)

2. Hawaii advisory body recommendations

a. Coral Reef Ecosystem PT

b. Ecosystem & Habitat Advisory Panel (AP)

c. Bottomfish PT/AP

d. Crustaceans AP/AP

e. Precious Corals PT/AP

3. Lawsuit to close lobster and bottomfish fisheries

1. 3rd & 4th quarter 1999 Hawaii and American Samoa longline fishery report

2. American Samoa

a. Framework measure

b. Marine Conservation Plan

3. Shark management

a. Shark catch and disposition in 1999 in Hawaii longline fishery

b. Blue shark stock assessment

c. Report of cultural study of sharks and shark finning in the western Pacific Region

d. National Plan of Action—Sharks

e. Pelagics FMP amendment for shark management

f. Ocean Wildlife Campaign's concern for blue sharks

4. Seabird interactions in the Hawaii longline fishery

a. Status of amendment

b. Short-tailed albatross biological opinion

c. National Plan of Action—seabirds

5. Turtle management

a. Imposition of longline closed area north of Hawaii

b. Status of the lawsuit

6. Pacific Fishery Management Council's Highly Migratory Species Fishery Management Plan

7. Stock assessment of pelagic management unit species

8. International

a. Multilateral High Level Conference 6

b. International Pelagic Shark Workshop

c. Kiribati-Spain fishing agreement

d. National Plan of Action—fishing capacity

9. Recreational Fisheries Data Task Force

1. Status of framework amendment

1. Bottomfish FMP

2. Crustaceans FMP

3. Precious corals FMP

4. Public scoping hearing on precious corals EIS alternatives

The EIS will discuss the impacts of potential precious coral harvest on the human environment and consider alternatives for a number of management measures. Alternatives will be assessed for impacts on essential fish habitat, target and non-target species of fish, discarded fish, marine mammals (Hawaiian monk seals and cetaceans), and other protected species present in the western Pacific ecosystem. In addition, the environmental consequences section will contain an analysis of socio-economic impacts of the fishery on the following groups of individuals: (1) Those who participate in harvesting the fishery resources and other living marine resources; (2) those who process and market the fish and fish products; (3) those who are involved in allied support industries; (4) those who consume fish products; (5) those who rely on living marine resources in the management area, either for subsistence needs or for recreational benefits; (6) those who benefit from non-consumptive uses of living marine resources; (7) those involved in managing and monitoring fisheries; and (8) fishing communities.

1. Review of status

2. Public scoping hearing

The Council intends to develop amendments to the Bottomfish FMP, Crustaceans FMP, and Precious Coral FMP which will consider a range of alternatives and impacts for management of bottomfish, crustacean and precious coral fisheries in the Pacific Remote Island Areas (PRIAs) and CNMI. The PRIAs are defined as Howland Island, Jarvis Island, Wake Island, Midway Island, Palmyra Atoll, Kingman Reef, and Johnston Atoll.

The Council is evaluating the need to amend the bottomfish, crustacean and precious corals FMPs to better achieve the management objectives of these FMPs. Currently, no Federal regulations are in place to manage the bottomfish, crustacean and precious coral fishery resources in the EEZ waters surrounding the CNMI. There are also no Federal regulations for the bottomfish and crustacean fisheries for the EEZ waters surrounding the Pacific Remote Island Areas (PRIAs). The amendments will consider a wide range of management alternatives to address data shortfalls and possible impacts from the bottomfish, crustacean, and precious coral fisheries in the PRIAs and the CNMI. The Council seeks to solicit public comment and input on a wide range of management alternatives including, but not limited to, the following: Federal permit and data reporting requirements; limited access; vessel monitoring systems; observer program; closed season; closed areas; gear restrictions; size limits; catch quotas; and prohibitions on the use of destructive fishing techniques, including the use of explosives, poisons, bottomset gill-nets, bottom trawls, and tangle nets.

Although non-emergency issues not contained in this agenda may come before the SSC for discussion, those issues may not be the subject of formal SSC action during this meeting. SSC action will be restricted to those issues specifically listed in this document and any issue arising after publication of this document that requires emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kitty M. Simonds, 808-522-8220 (voice) or 808-522-8226 (fax), at least 5 days prior to the meeting date.