This rule is issued under Marketing Agreement No. 143 and Order No. 959, both as amended (7 CFR part 959), regulating the handling of onions grown in South Texas, hereinafter referred to as the “order.” The marketing agreement and order are effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (Department) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with the Secretary a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing the Secretary would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review the Secretary's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule revises the container requirements for onion shipments for peeling, chopping, and slicing currently prescribed under the South Texas onion marketing order. Handlers will be allowed to ship onions for peeling, chopping, and slicing in bulk trailer loads, 48-inch deep bulk bins, and tote bags. Currently, onions for these purposes may only be shipped in 47 inch by 37 1/2 inch by 36 inch deep bulk bins, having a volume of 63,450 cubic inches (hereinafter referred to as the “36-inch deep bulk bin”), or containers deemed similar by the Committee. A dimension tolerance for the bulk containers is also being added. All handlers shipping onions for peeling, chopping, and slicing will continue to be required to meet grade, size, inspection, and safeguard requirements. The additional method of shipment and containers will allow the South Texas onion industry to better meet the needs of fresh processors and allow the industry to compete with other suppliers of onions for fresh processing.

These changes were first unanimously recommended by the Committee at its meeting on September 16, 1999. At that meeting, the Chairman appointed a subcommittee to review the Committee's recommendations. On October 19, 1999, the Committee met again and unanimously approved the subcommittee's recommendations detailed herein.

Section 959.52 of the South Texas onion marketing order authorizes the establishment of grade, size, quality, maturity, and pack and container regulations for shipments of onions. Section 959.52(c) allows for the modification, suspension, or termination of such regulations when warranted. Section 959.53 authorizes changes to the order's regulations to facilitate the handling of onions for relief, charity, experimental purposes, export, or other purposes recommended by the Committee and approved by the Secretary. Section 959.54 of the order provides authority for the Committee to establish that onions handled for special purposes are handled only as authorized. Section 959.60 provides that whenever onions are regulated pursuant to § 959.52, such onions must be inspected by the inspection service and certified as meeting the applicable requirements. Section 959.80 of the order authorizes handler reporting requirements.

Section 959.322(f) of the order's rules and regulations provides specific safeguards for certain special purpose shipments of onions. Furthermore, paragraph (f)(3) of § 959.322 provides authority for the shipment of onions for fresh peeling, chopping, and slicing in 36-inch deep bulk bins, or containers deemed similar by the Committee. Such shipments are exempt from the container requirements specified in paragraph (c) of § 959.322, but are required to be handled in accordance with the safeguard provisions of § 959.54, and meet the grade requirements in paragraph (a), the size requirements in paragraph (b), the inspection requirements in paragraph (d), and the safeguard requirements in paragraph (g) of § 959.322.

Currently, § 959.322(f)(3) allows onion shipments for peeling, chopping, and slicing in 36-inch deep bulk bins, or containers deemed similar by the Committee. The Committee recommended that shipments of onions to these outlets be authorized in bulk trailer loads, 48-inch deep bulk bins (with the same length and width dimensions as the 36-inch deep bulk bin), and tote bags, and that the provisions on containers deemed similar be removed because it has caused confusion in the industry. In its place, the Committee recommended implementation of a dimension tolerance.

The market for onions for fresh processing uses has grown dramatically in the last five years. The food service industry is the fastest growing market for onions in the United States. Consumption of onions has increased, especially for onions used in restaurants, salad bars, and cafeterias in fresh peeled, chopped, or sliced form. Fresh process is an increasingly important market for the domestic onion industry, and is expected to continue growing.

Buyers of onions for fresh processing continually demand flexibility in container availability, and the Committee is always looking for ways to strengthen and expand the market for South Texas onions. The Committee believes that South Texas may enhance its ability to take full advantage of available marketing opportunities for fresh peeling, chopping, and slicing onions with the more flexible shipping container requirements. The more flexible containers and method of shipment may allow the South Texas onion industry to better meet the needs of fresh processors and allow the industry to better compete with other suppliers of onions for fresh processing. The changes are expected to open new markets for South Texas and help the industry increase its fresh processed onion market share. The Committee estimates that these changes may help the industry double shipments into these outlets.

Because the demand for fresh processed onions is increasing and Texas has not been able to market more of its crop in the conveyances and containers the trade desires, the trade has been going to other competing areas, that are not restricted by regulations, leaving Texas at a disadvantage. Presently, other onion-growing areas can ship onions in bulk loads for peeling, chopping, and slicing purposes, but the South Texas onion industry cannot do so because the regulations restrict shipments to 36-inch deep bulk bins. Competition from other onion production areas demands that the South Texas onion industry be able to quickly respond to buyer demands for other types of shipments. Also, other onion producing areas not bound by restrictions have the flexibility to ship fresh processing onions as needed by buyers. The added flexibility of these changes will allow handlers to meet the competition from other areas and better meet buyer's needs.

The Committee also recommended adding tightly-woven mesh plastic tote bags 36 inches by 36 inches by 66 inches long with a capacity of approximately 2,000 pounds of onions for shipment to fresh processors. These tote bags are returnable and have four handles that are placed to fit forklifts. Ties are attached to each end of the bags and the onions may be dumped by unfastening the bottom tie. Use of these bags will help speed up the unloading process, saving time and money for the fresh processors.

The total volume specification of 63,450 cubic inches for the 36-inch bulk bin currently included in the regulation does not allow any flexibility in the dimension of the container and the phrase “or containers deemed similar by the committee” lacks specificity and could result in confusion. The Committee believes that a more precise tolerance is needed so that there is no room for misinterpretation by the industry. The Committee, therefore, recommended removing the phrase “and having a volume of 63,450 cubic inches, or containers deemed similar by the committee” and adding in its place provisions establishing a dimension tolerance of 2 inches for each dimension on all bulk containers used for shipping onions for peeling, chopping, and slicing. The 2-inch tolerance for each dimension on all bulk containers will allow handlers to pack onions for peeling, chopping, and slicing in containers with dimensions slightly different from the sizes specified in the regulation. Identifying a specific dimension tolerance in the regulation will prevent misunderstandings, and provide handlers packing flexibility. The addition of the container dimension tolerance recognizes the difficulty in producing containers with precise measurements all of the time.

The Committee recommended that the regulation specify that only 3-inch and larger onions be shipped for these purposes because smaller onions cannot be processed efficiently using available machinery. However, the provisions under which this action is being implemented do not authorize the establishment of a minimum size different than the 1-inch minimum currently in place for all shipments. Therefore, this recommendation is not being implemented. Lastly, minor changes are being made to the handling regulation for clarity.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), AMS has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 80 producers of South Texas onions in the production area and 37 handlers subject to regulation under the marketing order. Small agricultural producers have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts less than $500,000, and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000.

Most of the handlers in South Texas are vertically integrated corporations involved in producing, shipping, and marketing onions. For the 1998-99 marketing year, onions produced in the production area were shipped by the industry's 37 handlers with the average and median volume handled being 147,669 and 102,478 fifty-pound bag equivalents, respectively. In terms of production value, total revenues from the 37 handlers were estimated to be $43.7 million, with average and median revenues being $1.1 million, and $820,000, respectively.

The South Texas onion industry is characterized by producers and handlers whose farming operations generally involve more than one commodity, and whose income from farming operations is not exclusively dependent on the production of onions. Alternative crops provide an opportunity to utilize many of the same facilities and equipment not in use when the onion production season is complete. For this reason, typical onion producers and handlers either produce multiple crops or alternate crops within a single year.

Based on the SBA's definition of small entities, the Committee estimates that all the 37 handlers regulated by the order would be considered small entities if only their spring onion revenues are considered. However, revenues from other productive enterprises would likely push a large number of these handlers above the $5,000,000 annual receipt threshold. All of the 80 producers may be classified as small entities based on the SBA definition if only their revenue from spring onions is considered. When revenues from all sources are considered, a majority of the producers would not be considered small entities because receipts would exceed $500,000.

This rule revises the container requirements for onion shipments for peeling, chopping, and slicing currently prescribed under the South Texas onion marketing order. Shipments of onions for these purposes will be permitted in bulk loads, 48-inch deep bulk bins, and tote bags, in addition to the currently approved 36-inch deep bulk bin. A dimension tolerance for the bulk containers will also be added. All handlers shipping onions for peeling, chopping, and slicing will continue to be required to meet grade, size, inspection, and safeguard requirements.

This rule change will allow South Texas onion handlers to supply existing markets, may open up new markets to satisfy fresh processor demand, and may allow the industry to be more competitive in the marketplace. Allowing shipments of onions to fresh processors in bulk loads, 48-inch bulk bins, and tote bags, in addition to the current 36-inch deep bulk bin, is expected by the Committee to double the shipments of Texas onions to fresh processed buyers. The increase in shipments is expected because the changes will allow the South Texas onion industry to better meet the needs of fresh processors and allow the industry to compete with other suppliers of onions for fresh processing.

At the meetings, the Committee discussed the impact of these changes on handlers and producers and believed that the benefits of this rule are not expected to be disproportionately greater or less for small handlers or producers than for larger entities. The increased shipping flexibility is expected to be equally beneficial to all shippers regardless of size.

An alternative to this action would be to maintain the status quo, however, the Committee believes that the current regulation does not address the needs of handlers desiring to expand their fresh process onion marketing efforts. The Committee believes that the regulations should be modified to address these needs. The Committee further believes that not allowing different types of bulk shipments for peeling, chopping, and slicing will be detrimental to the South Texas onion industry. Allowing shipments of onions in additional bulk bins and in bulk loads will meet the industry's objective of marketing more onions. These changes should provide the industry with additional marketing opportunities and should allow the industry to be more competitive.

Currently, all handlers making onion shipments for relief, charity, processing, experimental purposes, or peeling, chopping, and slicing are required to apply for and obtain a Certificate of Privilege from the Committee to make such shipments. No additional reporting burden is estimated in making such applications because all 37 of the handlers in the Texas onion industry routinely apply each season for these certificates and this is expected to continue. However, this action will impose additional reporting requirements on the 37 onion handlers. Because this action is expected to foster increased shipments, the handlers are expected to file more Reports of Special Purpose Onion Shipments. This report accompanies each shipment and takes about .083 hours to complete. It is used to verify proper disposition of the onions. Currently, each of the 37 handlers ship approximately 15 loads of onions for special purposes. The Committee estimates that this rule change will double the number of shipments going to these outlets to 30 loads per handler, which will result in an estimated burden to the previously-mentioned 37 handlers of about 92 hours.

As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection requirements that are contained in this rule have been previously approved by the Office of Management and Budget (OMB) and are being assigned OMB No. 0581-0187. In addition, the Department has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

The Committee's meetings were widely publicized throughout the onion industry and all interested persons were invited to attend the meetings and participate in Committee deliberations on all issues. Like all Committee meetings, the October 19, 1999, meeting was a public meeting and all entities, both large and small, were able to express their views on this issue. The Committee itself is composed of 17 members, of which 10 are producers and 7 are handlers. Also, the Committee has subcommittees to review certain issues and make recommendations to the Committee. The subcommittee met on October 12, 1999, and discussed this issue in detail. The meeting was a public meeting and both large and small entities were able to participate and express their views. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses. A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at the following web site: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this notice announces that AMS has obtained emergency approval for a new information collection request for Onions Grown in South Texas, Marketing Order No. 959.

Title: Onions Grown in South Texas, Marketing Order No. 959.

OMB Number: 0581-New.

Type of Request: New collection.

Abstract: Marketing order programs provide an opportunity for producers of fresh fruits, vegetables, and specialty crops, in a specified production area, to work together to solve marketing problems that cannot be solved individually. Order regulations help ensure adequate supplies of good quality produce and adequate returns to producers. Under the Act, industries enter into marketing order programs. The Secretary of Agriculture is authorized to oversee the order's operations and issue regulations recommended by a committee of representatives from each commodity industry.

The South Texas onion marketing order, which has been operating since 1961, authorizes the issuance of grade, size, quality, pack, and container requirements. The order also has authority for research and development projects. Regulatory provisions apply to onions shipped within and out of the area of production to any market, except those specifically exempted by the marketing order. Pursuant to section 8e of the Act, import grade and size requirements are implemented on onions imported into the United States.

The order, and rules and regulations issued thereunder, authorize the Committee, the agency responsible for local administration of the order, to require handlers and producers to submit certain information. Much of this information is compiled in aggregate and provided to the industry to assist in marketing decisions. The information collection requirements in this request are essential to carry out the intent of the Act, to provide the respondents the type of service they request, and to administer the South Texas onion marketing order program.

The Committee has developed forms as a convenience to persons who are required to file information with the Committee that is needed to carry out the requirements of the order, and their use is necessary to fulfill the intent of the Act as expressed in the order, and the rules and regulations issued thereunder. South Texas onions are shipped from March 1 through June 4 and these forms are used accordingly.

The information collected would be used only by authorized representatives of the USDA, including AMS, Fruit and Vegetable Programs regional and headquarter's staff, and authorized employees of the Committee. Authorized Committee employees and the industry are the primary users of the information and AMS is the secondary user.

This collection consists of a requirement for handlers to file a Report of Special Purpose Onion Shipments with the Committee when shipping onions for fresh processing outlets. Shipments of South Texas onions for special purposes are exempt from certain requirements under the order. However, onions for peeling, chopping, and slicing must meet grade, size, inspection, and safeguard requirements of the order. Use of this form is authorized under § 959.322(g)(4). The Report of Special Purpose Onion Shipment would be completed for each load of onions for special purposes, including onions for peeling, chopping, and slicing, by each of the 37 reporting handlers. The estimated annual burden hours is about 92 hours.

The Committee believes that to improve returns to producers and handlers, handlers should be encouraged to develop new outlets. This action is expected to encourage additional onion shipments by allowing handlers to ship onions for fresh processing using different methods of shipping. The information supplied by the applicant handler would provide the Committee with information necessary to ensure that the onions are disposed of as intended.

The information collection burden is as follows:

Estimate of Burden: Public reporting burden for the Report of Special Purpose Onion Shipment form is estimated to average 5 minutes per response.

Respondents: Handlers of onions grown in South Texas.

Estimated Number of Respondents: 37.

Estimated Number of Responses per Respondent: 30 annually.

Estimated Total Annual Burden on Respondents: 92 hours.

Comments: Comments are invited on: (1) Whether the new collection of the information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the new collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

Comments should reference OMB No. 0581-0187 and South Texas Onion Marketing Order No. 959, and be sent to the USDA in care of the Docket Clerk at the address above. All comments received will be available for public inspection during regular business hours at the same address.

Because there was not enough time for a normal clearance procedure, AMS has obtained temporary approval from OMB for this new collection for the upcoming shipping season expected to begin in early March 2000. At a later time, the new collection will be added to the collection currently approved for use under OMB Number 0581-0178.

All responses to this notice will be summarized and included in the request for OMB approval of 0581-0178. All comments will also become a matter of public record.

After consideration of all relevant material presented, including the Committee's recommendation, and other information, it is found that this interim final rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

This rule invites comments on a revision to the container requirements for shipping onions to fresh processors currently prescribed under the South Texas onion marketing order. Any comments received will be considered prior to finalization of this rule.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) This rule relaxes requirements for shipping onions to fresh processors and provides additional marketing flexibility for the industry to ship onions; (2) this rule needs to be in place for the 2000 season beginning March 1, 2000, so the industry may take advantage of the relaxed requirements; (3) the Committee unanimously recommended these changes at public meetings, and interested parties had an opportunity to provide input; and (4) this rule provides a 60-day comment period, which is considered appropriate in view of this above, and any comments received will be considered prior to finalization of this rule.

This final rule adds Cleveland, Ohio, Ft. Myers, Florida, and San Jose, California, to 8 CFR 214.2(c)(1) as ports-of-entry where, except for transit from one part of foreign contiguous territory to another part of the same territory, application for direct transit without visa must be made.

The Cleveland Hopkins International Airport in Cleveland, Ohio, recently began daily nonstop service between Cleveland and the United Kingdom's London Gatewick Airport. Passengers wishing to travel between Canada and London via Cleveland will benefit from this rule change. The Southwest Florida International Airport in Ft. Myers, Florida, has added additional international passenger service, specifically arrivals transiting between the German Federal Republic and Mexico. In addition, the designation of the airport at San Jose, California, as a transit without visa port-of-entry will allow carriers to accept passengers transiting between the Far East and Latin America. By allowing these airports to accept applications for direct transit without visa, they will be able to accommodate these transit air passengers.

Compliance with 5 U.S.C. 553(a)(2) as to notice of proposed rulemaking and delayed effective date is unnecessary as this rule relates to agency management, and accordingly, is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). Therefore the reporting requirement of 5 U.S.C. 801 does not apply.

The Commissioner of the Immigration and Naturalization Service, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule merely allows the Cleveland, Ohio, Ft. Myers, Florida, and San Jose, California, airports to accommodate individual international passengers by providing authority to carriers to accept applications for direct transit without visa.

This regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review” section 1(b), Principles of Regulation. This rule falls within a category of actions that the Office of Management and Budget (OMB) has determined not to constitute “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and accordingly this rule has not been reviewed by OMB.

This regulation will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

What caused this AD? This AD is the result of reports of in-flight incidents and an accident that occurred in icing conditions where the airframe pneumatic deicing boots were not activated.

What is the potential impact if the FAA took no action? The information necessary to activate the pneumatic wing and tail deicing boots at the first signs of ice accumulation is critical for flight in icing conditions. If we did not take action to include this information, flight crews could experience reduced controllability of the aircraft due to adverse aerodynamic effects of ice adhering to the airplane prior to the first deicing cycle.

Has the FAA taken any action to this point? Yes. We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to all Partenavia Models AP68TP 300 “Spartacus” and AP68TP 600 “Viator” airplanes that are equipped with pneumatic deicing boots. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on October 8, 1999 (64 FR 54808). The NPRM proposed to require revising the Limitations Section of the AFM to include requirements for activating the pneumatic deicing boots at the first indication of ice accumulation on the airplane.

Was the public invited to comment? Yes. Interested persons were afforded an opportunity to participate in the making of this amendment. No comments were received on the proposed rule or the FAA's determination of the cost to the public.

What is the FAA's Final Determination on this Issue?: We carefully reviewed all available information related to the subject presented above and determined that air safety and the public interest require the adoption of the rule as proposed except for minor editorial corrections. We determined that these minor corrections:

How many airplanes does this AD impact?: We estimate that 3 airplanes in the U.S. registry will be affected.

What is the cost impact of the affected airplanes on the U.S. Register? : There is no dollar cost impact. We estimate that to accomplish the AFM revision it will take you less than 1 workhour. You can accomplish this action if you hold at least a private pilot certificate as authorized by section 43.7 of the Federal Aviation Regulations (14 CFR 43.7). You must make an entry into the aircraft records that shows compliance with this AD, in accordance with section 43.9 of the Federal Aviation Regulations (14 CFR 43.9). The only cost impact of this AD is the time it will take you to insert the information into the AFM.

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

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA has prepared a final evaluation and placed it in the Rules Docket. You can get a copy of this evaluation at the location listed under the caption ADDRESSES .

What caused this AD? This AD is the result of reports of in-flight incidents and an accident that occurred in icing conditions where the airframe pneumatic deicing boots were not activated.

What is the potential impact if the FAA took no action? The information necessary to activate the pneumatic wing and tail deicing boots at the first signs of ice accumulation is critical for flight in icing conditions. If we did not take action to include this information, flight crews could experience reduced controllability of the aircraft due to adverse aerodynamic effects of ice adhering to the airplane prior to the first deicing cycle.

Has the FAA taken any action to this point? Yes. We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to all I.A.M. Model Piaggio P-180 airplanes that are equipped with pneumatic deicing boots. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on October 8, 1999 (64 FR 54815). The NPRM proposed to require revising the Limitations Section of the AFM to include requirements for activating the pneumatic deicing boots at the first indication of ice accumulation on the airplane.

Was the public invited to comment? Yes. Interested persons were afforded an opportunity to participate in the making of this amendment. No comments were received on the proposed rule or the FAA's determination of the cost to the public.

What is the FAA's Final Determination on this Issue? We carefully reviewed all available information related to the subject presented above and determined that air safety and the public interest require the adoption of the rule as proposed except for minor editorial corrections. We determined that these minor corrections:

How many airplanes does this AD impact? We estimate that 5 airplanes in the U.S. registry will be affected.

What is the cost impact of the affected airplanes on the U.S. Register? There is no dollar cost impact. We estimate that to accomplish the AFM revision it will take you less than 1 workhour. You can accomplish this action if you hold at least a private pilot certificate as authorized by section 43.7 of the Federal Aviation Regulations (14 CFR 43.7). You must make an entry into the aircraft records that shows compliance with this AD, in accordance with section 43.9 of the Federal Aviation Regulations (14 CFR 43.9). The only cost impact of this AD is the time it will take you to insert the information into the AFM.

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

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA has prepared a final evaluation and placed it in the Rules Docket. You can get a copy of this evaluation at the location listed under the caption ADDRESSES .

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to to certain McDonnell Douglas Model MD-90-30 series airplanes was published in the Federal Register on October 27, 1999 (64 FR 57790). That action proposed to require repetitive fluorescent penetrant and magnetic particle inspections to detect fatigue cracking of the main landing gear (MLG) piston, and repair, if necessary.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the single comment received.

The commenter supports the proposed rule.

After careful review of the available data, including the comment noted above, the FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

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

There are approximately 19 airplanes of the affected design in the worldwide fleet. The FAA estimates that 15 airplanes of U.S. registry will be affected by this AD, that it will take approximately 2 work hours per airplane to accomplish the required inspections, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $1,800, or $120 per airplane, per inspection cycle.

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

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

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

The Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom (UK), recently notified the Federal Aviation Administration (FAA) that an unsafe condition may exist on Rolls-Royce plc (R-R) RB211-524H-36 series turbofan engines. The CAA received a report of burn through of a combustor case that led to burning away of the thrust reverser and translating cowl and subsequent fire damage to the engine pylon. The investigation revealed that front combustion liner diffuser case bleed struts and front section inner and outer liners demonstrate cracking after extended use. Additionally, combustion liners have exhibited burning of the heat shield inner ramp corners. This condition, if not corrected, could result in burn through of the combustor case due to combustion liner cracking, which can result in an engine fire and damage to the aircraft.

R-R has issued Service Bulletin (SB) No. RB.211-72-9764, Revision 3, dated January 16, 1998, that specifies procedures for installing improved combustion liners with a strengthened head and improved heat shields. The CAA classified this SB as mandatory and issued airworthiness directive (AD) 009-01-98 in order to assure the airworthiness of these engines in the UK.

This engine model is manufactured in the UK 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 CAA has kept the FAA informed of the situation described above. The FAA has examined the findings of the CAA, 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 engines of the same type design, the AD requires, prior to entry into service, installing an improved combustion liner with a strengthened head and improved heat shields. At the present time, there are no affected engines installed on aircraft of U.S. registry. Also, the CAA has advised the FAA that all engines in the active fleet have had the improved combustor liner installed. However, some spare engines may not have had the improved combustion liner installed. The actions would be required to be accomplished in accordance with the SB described previously.

There are currently no domestic operators of this engine model. Accordingly, a situation exists that requires the immediate adoption of this regulation. Notice and opportunity for prior public comment hereon are impracticable, and good cause exists for making this amendment effective in less than 30 days.

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted to the address specified under the caption ADDRESSES . All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the 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 that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NE-01-AD.” The postcard will be date stamped and returned to the commenter.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order (EO) 13132.

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and is not a “significant regulatory action” under EO 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

On October 5, 1999, a proposal to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to establish the Class E airspace at Russian Mission, AK, was published in the Federal Register (64 FR53956). The proposal was necessary due to the establishment of two GPS instrument approaches at Russian Mission, AK. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments to the proposal were received; thus, the rule is adopted as written.

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1200 foot transition areas are published in paragraph 6005 in FAA Order 7400.9G, Airspace Designations and Reporting Points, dated September 1, 1999, and effective September 16, 1999, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This amendment to 14 CFR part 71 establishes the Class E airspace at Russian Mission, AK, through the establishment of two GPS instrument approach procedures. The area will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide controlled airspace for IFR operations at Russian Mission, AK.

The FAA has determined that this rule only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore —(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The Office of Justice Programs, Office of the Police Corps and Law Enforcement Education (“Office of the Police Corps”) offers, pursuant to the Police Corps Act, 42 U.S.C. 14091 et seq. , and through the Police Corps program, financial aid on a competitive basis to college students who agree to undergo rigorous training and serve as police in specially designated areas for at least four years.

Once a participant is accepted into the Police Corps, he or she receives financial aid on a prospective basis through scholarship payments. 42 U.S.C. 14095(a). If a participant completes one or more years of college study before being accepted into the Police Corps, he or she receives reimbursements for educational expenses incurred during the prior years. 42 U.S.C. 14095(b). The Police Corps Act does not specify the timing of these reimbursements, and the reimbursements do not include interest.

Prior to publication of the interim final rule, the relevant implementing regulation provided that reimbursements would be made through four equal payments, one upon completion of each of the four years of required service. The interim final rule changed that provision to accelerate reimbursements. Under the interim rule, participants were to be paid in two equal installments at the start and completion of a participant's first year of required service as a police officer or sheriff's deputy.

The change enabled participants to promptly repay student loans and, by allowing the Director flexibility in dealing with special individual circumstances, enabled participants to have funds available to make loan payments and meet other ongoing financial obligations during the 16 to 24 weeks of required residential training. By reducing the number of payments per participant, the change also eased the administrative burden on both the Office of the Police Corps and state lead agencies.

The interim rule requested that comments concerning the new provisions be submitted to the Office of the Police Corps by September 20, 1999. The Office of the Police Corps did not receive any comments and is therefore adopting the interim rule as final without change.

This regulation has been drafted and reviewed in accordance with Executive Order 12866, section 1(b), Principles of Regulation. The Office of Justice Programs has determined that this rule is not a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and accordingly this rule has not been reviewed by the Office of Management and Budget.

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

The Office of Justice Programs, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact upon a substantial number of small entities for the following reasons:

(1) This rule provides the schedule under which eligible participants receive reimbursements for educational expenses under the Act; and

(2) Such reimbursements impose no requirements on small business or on small entities.

This rule will not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in cost or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete in domestic and export markets.

There are no collection of information requirements contained in this regulation that would require review and approval by the Office of Management and Budget under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

This final rule implements several recent statutory changes and makes other revisions to the Third Party Collection Program under 10 U.S.C. 1095, as discussed below.

This rule was published as a proposed rule March 10, 1998, 63 FR 11635, for a 60-day comment period. We received one public comment, which was from an association of health insurance organizations that sponsor health plans under the Federal Employees Health Benefits Program. In general, this comment argued that portions of the proposed rule departed from the long-standing foundation of the Third Party Collection Program that payers must treat claims from medical facilities of the Uniformed Services no less favorably or more favorably than claims from non-federal providers, and would instead require payers to give military hospitals “preferential treatment.”

We strongly disagree. The proposed rule and the final rule reaffirm the Department's enduring interpretation of the statute and understanding of its purpose. The purpose is to prevent health insurers from gaining a windfall at the expense of the federal government and federal taxpayers by collecting full premiums on behalf of insured persons who are also eligible for military care and then avoiding payment for covered services provided by military facilities. This Congressional purpose is especially compelling when the premium payments also come primarily from the federal government and federal taxpayers, as they do in the Federal Employees Health Benefits Program (FEHPB). In this case, the government has paid the FEHBP plan sponsor a premium to cover essentially all the health care needs of the insured person. When that insured person receives care in a military facility, the government pays again in the form of the costs of providing that care. Practices that have the effect of denying or limiting payment based solely on the fact that the care is provided in a MTF is not permissible. This is not “preferential treatment;” it is what is required by section 1095 for all third party payers.

We will discuss additional points made in this comment in the following summary of the features of the final rule.

Section 713(b)(1) of the National Defense Authorization Act for Fiscal Year 1994, Pub. L. 103-160, amended the Third Party Collection Program's definition of “insurance, medical service, or health plan” to clarify that any “preferred provider organization” (PPO) is included in the definition. This amendment codified DoD's previous interpretation. Experience in applying the statutory authority to the context of preferred provider organizations has indicated a need to establish some special rules for plans with PPO provisions or options so that all parties will have a clearer understanding of their obligations and rights under the statute. We do this by amending § 220.12.

It is our interpretation of 10 U.S.C. 1095 that a plan with a PPO provision or option generally has an obligation to pay the United States the reasonable costs of health care services provided through any facility of the Uniformed Services to a Uniformed Services beneficiary who is also a beneficiary under the plan. No provision of any PPO plan having the effect of excluding from coverage or limiting payment for certain care if that care is provided through a facility of the Uniformed Services shall operate to prevent collection under this part.

10 U.S.C.1095 strikes a careful balance. On the one hand, it disallows third party payer rules that would have the effect of excluding from coverage or limiting payment because the care was provided in a DoD facility. The law renders inoperative numerous administrative procedures and payment rules of third party payers that would defeat the purpose of 10 U.S.C. 1095 or result in a windfall for a third party payer who has collected premiums but then avoided payments. On the other hand, the statute does not require third party payers to make fundamental changes in their own rules in order to accommodate Government providers. This final rule reflects that balance in our special rules for PPOs.

Consistent with the statutory mandate that the operation of the Third Party Collection Program is not dependent upon a participation agreement or similar contractual relationship between military treatment facilities and third party payers, this final rule states that the lack of a PPO agreement or the absence of privity of contract is not a permissible ground for refusing or reducing payment. Based on this and the careful statutory balance, we believe that under the law, the lack of a contractual relationship between the PPO and the facility of the Uniformed Services may not be a basis for the plan to treat the DoD facility as a non-PPO provider for purposes of the PPO's payment amount, if the facility of the Uniformed Services accommodates the PPO's fundamental price and utilization management standards.

Under this final rule, a DoD facility accommodates a PPO's fundamental price standards by accepting, in lieu of the normal Third Party Collection Program rates established under § 220.8, the PPO's prevailing rates of payment paid to preferred providers in the same geographic area for the same or similar aggregate groups of services, if such rates are, in the aggregate, less than the DoD rates. A DoD facility accommodates a PPO's fundamental utilization management by complying with the reasonable pretreatment, concurrent, or retrospective review procedures that are required of all preferred providers under the PPO plan and by accepting denials of requested payment that are consistent with prevailing standards in the geographic area of medical necessity and proper level of care for the services involved. In other words, if DoD rates are not representative of what a PPO perceives to be an optimal efficient practice as demonstrated by the rates of other providers in their network, DoD will accept the prevailing rate as payment in full with the provision that the PPO furnish the required information as stated in § 220.12(d). At the same time, if the DoD rates are lower than or equal to the prevailing PPO rates, then DoD will accept DoD rates as payment in full.

By accommodating a PPO's fundamental price and utilization management standards, DoD does not seek to compel the third party payer to make fundamental changes in its PPO program in order to conform to the DoD facility's operations. But other rules and procedures of the PPO that would have the effect of denying or limiting payment are not allowed. This final rule includes several examples of such impermissible PPO requirements. Among these is any PPO requirement that would purport to require a facility of the Uniformed Services, in order to effectuate the legislative purpose of 10 U.S.C. 1095, to act in a manner inconsistent with the basic nature of facilities of the Uniformed Services.

The comment we received objected to this portion of the proposed rule on the grounds that, even if the facility of the Uniformed Services accepts the PPO payment rate and utilization management requirements, it exceeds DoD authority to disallow reduced, non-PPO payments (based on higher beneficiary copayments for using non-PPO providers) unless the facility complies with all other rules of the PPO “to bill for services rendered using forms, codes, etc. as requested by the payer” and otherwise “to reduce administrative and benefit costs.” We disagree. With Congress amending section 1095(h)(2) to specifically cover PPOs, section 1095(b) now clearly commands that no PPO requirement having the effect of limiting payment of charges shall operate to prevent collection under section 1095 for care provided by a facility of the Uniformed Services that does not have a participation agreement with the PPO. We do not believe this can be reasonably interpreted to mean that PPO requirements that would compel military facilities to sign participation agreements to conform to all of the PPO's forms, codes, and procedures shall be given effect. Rather, we read section 1095(a) and (b) together to strike the careful balance described above, accepting fundamental plan elements but dismissing what might be a myriad of other procedures, caveats, forms, codes, and administrative requirements.

The comment also argued that the proposed rule did not adequately accommodate a PPO's fundamental price standards because it continued to base billings on DoD's cost allocation structure, rather than the PPO's payment methodology. Again, we disagree. The billing structure used by DoD, which by necessity is the point of comparison with the PPO's payment rates to determine whether to accept payments less than DoD's calculated costs, is based specifically on the authority contained in section 1095(f). Thus, the rule is entirely consistent with the statute concerning cost calculations.

There may be a suspicion that the DoD rates, as a representative of reasonable costs, indicate inefficient practices. This impression might be created by trying to compare a DoD average all-inclusive rate with that of an itemized rate methodology. The wide variation in these two pricing methodologies leads to misunderstanding of DoD practices. The cost per DoD eligible is in fact far below the average national expenditure per person on healthcare. However, in an effort to move toward civilian industry practices, DoD will issue a proposed rule this year to implement the new rate methodology authorized by section 716 of the National Defense Authorization Act for Fiscal Year 2000. This change will allow DoD to calculate reasonable charges for both inpatient and outpatient services. These reasonable charges will become the standard DoD rates. More specifically, the new law allows Military Treatment Facilities to adopt the rates and rate structure such as that currently used under CHAMPUS/TRICARE. The CHAMPUS/TRICARE payment rates for professional services are essentially the same as the Medicare fee schedule and are equal to significantly discounted rates by procedure code. As such, these rates are extremely competitive with civilian sector pricing. Billing will conform to common methods used by the insurance industry, utilizing standardized procedure codes, and will facilitate easy rate comparisons.

Although we believe the special rules established by § 220.12 are correct and proper interpretations of the statute, we have added in the final rule a sunset provision for this section of the regulation. It states that these special rules will no longer be in effect as of October 1, 2004. This sunset provision is included to permit both the Department of Defense and third party payers to gain experience with these rules and have an assured opportunity to revisit these rules in a subsequent rule making process. It is our intent to initiate a new rule making process early in fiscal year 2004. By that time, the new rate methodology discussed above will be in effect, permitting easy rate comparisons.

We will also have experience with other aspects of the implementation of this section. During the fiscal year 2004 rule making process, third party payers will have the opportunity to present evidence of any effects of this section the payers believe are unfair. This includes any evidence or data they may have of a cost impact of this section, a change in utilization by plan members, any effects in particular geographical areas, any litigation results, any management consequences, changes in beneficiary satisfaction or enrollment rates, or any other effects, analysis or observations concerning the implementation of this section. The sunset provision is a good faith effort by the Department of Defense to reexamine after a reasonable implementation period the premises and expectations presented above and to consider perspectives and views of all interested parties then informed by experience with this section.

To recap, under the final rule, we will accommodate a PPO's fundamental price and utilization management standards. But we will not give effect to other requirements unnecessary for the achievement of the PPO's fundamental price and utilization management standards, such as requirements to accept PPO beneficiaries not eligible for military health care, to follow certain licensing, certification, or provider selection criteria, or to restrict patient referrals to providers specified by the PPO. Rules of this kind clearly defeat the purpose of section 1095 and contravene congressional policy. After considering attentively the comment, we conclude that the rule, including the new sunset provision, strikes the careful balance of the statute in the context of PPO implementation.

Section 735(b)(1) of the National Defense Authorization Act for Fiscal Year 1997, Pub. L. 104-201, expanded the definition of “third party payer” to include any “workers” compensation program or plan.” The final rule adds § 220.13 and a definition of the statutory term to implement this amendment.

While specific statutory schemes vary from State to State, workers' compensation plans generally provide compensation to employees or their dependents for loss resulting from the injury, disablement, or death of a worker due to an employment related accident, casualty, or disease. The common characteristic of workers' compensation programs is the provision of compensation based upon a fixed statutory scheme without regard to fault. Payment for the costs and provision of medical care are also common elements of workers' compensation programs, whether the program operates on the basis of insurance, a State fund, or other mechanism.

The new § 220.13 states that a workers' compensation program generally has an obligation to pay the United States the reasonable costs of health care services provided in or through any facility of the Uniformed Services to a Uniformed Services beneficiary who is also a beneficiary of the workers' compensation program and whose condition is due to an employment related accident, casualty, or disease. We have added several special rules concerning lump-sum payments and compromise settlements. These special rules are modeled after Medicare Secondary Payer rules applicable to workers' compensation programs, which appear at 42 CFR 411.46-47.

This final rule makes several other program revisions and clarifications, including:

The single public comment we received objected to several of these provisions. Among these was the change to § 220.2(d) regarding claims and appeals procedures, to which the comment objected on the grounds that this would result in preferential treatment to military facilities over civilian facilities which need an assignment of benefits from the covered beneficiary. We believe the rule is correct. Under section 1095, the right of the health care provider ( i.e. , the United States government) to collect is not based on a contractual relationship between the provider and the beneficiary ( i.e. , assignment of benefits from the beneficiary to the government), but rather on the right of the United States established by section 1095(a) to collect from the third party payer. To condition this right to collect on some permission from the beneficiary would conflict with section 1095.

The comment also dissented from the new § 220.3(c)(5) concerning Medicare carve-out and Medicare secondary payer provisions because it purports “to specify what benefits third party payers may or may not provide.” Actually, it does no such thing. It simply provides that for a Medicare carve-out or Medicare secondary payer exclusion to be used permissibly to refuse to make primary payment to a facility of the Uniformed Services, it must expressly apply to all providers to whom payment would not be made under Medicare. This is nothing more than a restatement in the context of Medicare carve-out and Medicare secondary payer provisions of the general rules of section 1095 that a payer may not discriminate against federal facilities. If a payer applies Medicare carve-out or Medicare secondary payer provisions to avoid payments to a facility of the Uniformed Services similar to payments that it would make to non-federal facilities not reimbursed by Medicare Part A, Part B, a Medicare HMO, or a Medicare Plus Choice plan, then it is discriminating against the facility of the Uniformed Services in violation of section 1095.

Finally, the comment expressed objection to the new § 220.7(d), which disallows plans from offsetting payments, without the consent of an authorized government official, to a facility of the Uniformed Service because the payer considers itself due a refund from the facility of the Uniformed Services arising from earlier payments from that third party payer. The comment argued that this is beyond DoD's authority because such offsets are common industry practice. We do not concur. Under section 1095, the United States has a right to collect, consistent with the statutory terms, the reasonable costs of health care services provided from a third party payer. This right is not contingent upon a third party payer's assertions regarding previous alleged overpayments. Moreover, under section 1095(e)(2), the authority to compromise a claim rests with the government, not with the payer. Without the consent of the government, a third party payer cannot compromise a claim premised on some separate disputed transaction. A request for refund must be submitted and adjudicated separately.

Under § 220.10(c), we provide notice of our intention to begin, effective April 1, 2000, to collect from Medicare supplemental plans reasonable costs for inpatient and outpatient copayments, other than the inpatient hospital deductible amount, and other services covered by Medicare supplemental plans. Although this authority is currently established in § 220.10(c), we had previously decided to defer implementation.

This rule has been reviewed in accordance with the provisions of Executive Order of 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), and it is not believed to meet the criteria for an economically significant regulatory action. Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when rulemaking is necessary, to select regulatory approaches that maximize net benefits including potential economic, environmental, public health, safety distributive and equity effects. The Unfunded Mandates Reform Act, Public Law 104-4, requires that agencies prepare an assessment of anticipated costs and benefits on any rulemaking that may result in an expenditure by State, local, or tribal government, or by the private sector of $100 million or more in any given year.

Executive Order 12866 requires that all regulations reflect consideration of alternatives, costs, benefits, incentives, equity, and available information. While 32 CFR part 220, Collection From Third Party Payers of Reasonable Costs of Healthcare Services, implements several changes to the Third Party Collection Program, we believe that this final rule should have no significant economic impact. The greatest concern expressed has been by the Office of Personnel Management (OPM) in regards to the addition of special rules for collections from PPOs and financial impact on the Federal Employees Health Benefits Program (FEHBP).

A cost benefit analysis to assess the full financial impact of this final rule is difficult as neither OPM nor DoD have a basis for a solid estimate of a precise number of DoD beneficiaries who have a Preferred Provider Organization plan throughout the industry, or in the FEHBP segment of the industry. In addition, current information systems do not provide an exact accounting of dollars and reasons for denied claims for this one population of patients. Therefore, cost estimates for FEHBP and total PPO denials are based on a limited manual review of claims data from Army Military Treatment Facilities (MTFs). The Army reported the dollar amount billed and the dollar amount denied due to non-PPO status with respect to all health plans. This percentage was then applied to total claims data from all Services.

A review of these results leads to an estimate of $49 million in annual reductions because the MTF provider was considered a non-preferred network provider by the payers. We estimate that FEHBP plans represent approximately 20-25% of all military treatment facility claims to third party payers. This leads to an estimate of annual impact on the FEHBP segment of the industry of $9.8 million to $12.25 million. These are good faith estimates based on very limited data.

We have reviewed this rule under the threshold criteria of Executive order 13132 of August 4, 1999, Federalism, published in the Federal Register on August 10, 1999 (64 FR 43255). Executive Order 13132 establishes special procedures for final regulations that have federalism implications. We have determined that this rule does not significantly affect the rights, roles, and responsibilities of States.

Information collection in compliance with this CFR, specifically section 220.9 “ Rights and obligations of beneficiaries”, is currently obtained on the DD form 2569, covered under OMB clearance 0704-032.

It has been determined that this Privacy Act rule for the Department of Defense does not constitute ‘significant regulatory action’. Analysis of the rule indicates that it does not have an annual effect on the economy of $100 million or more; does not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; does not materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; does not raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in Executive Order 12866 (1993).

It has been determined that this Privacy Act rule for the Department of Defense does not have significant economic impact on a substantial number of small entities because it is concerned only with the administration of Privacy Act systems of records within the Department of Defense.

It has been determined that this Privacy Act rule for the Department of Defense imposes no information requirements beyond the Department of Defense and that the information collected within the Department of Defense is necessary and consistent with 5 U.S.C. 552a, known as the Privacy Act of 1974.

Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. The EPA has determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because these corrections and clarifications are not controversial and do not substantively change the requirements of the architectural coatings rule. Thus, notice and public procedure are unnecessary. The EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(3)(B).

Regulated Entities. You may be affected by these rule amendments if you fall into one of the categories in the following table.

Architectural coatings are coatings that are recommended for field application to stationary structures and their appurtenances, to portable buildings, to pavements, or to curbs.

Use this table only as a guide because this action may also regulate other

The EPA published in the Federal Register of September 11, 1998 (63 FR 48848), the final rule regulating VOC emissions from architectural coatings. The address in the rule to which exceedance fee payments must be submitted has changed and, therefore, needs to be updated. In addition, the rule did not specify the entity to whom exceedance fee payments should be made payable. Thus, we're correcting and clarifying the rule as follows:

1. We are changing § 59.403(d) to indicate that the address to which exceedance fee payments must be mailed is located in § 59.409(b) of the rule. This change is necessary to implement the exceedance fee receipt and processing procedures that EPA recently established for this rule.

2. We are removing the word “Regional” from the title of § 59.409 to reflect that the section includes more than just the addresses of the EPA Regional Offices.

3. We are amending § 59.409 by designating the existing text as paragraph (a) and modifying it so that exceedance fee payments are deleted from the list of items that are sent to the EPA Regional Offices. This change is necessary due to the change in the address for exceedance fee payments.

4. We are amending § 59.409 by adding paragraph (b) that provides the correct address to which exceedance fee payments must be submitted. This change is necessary to specify that exceedance fees should be mailed to: U.S. Environmental Protection Agency, AIM Exceedance Fees, Post Office Box 371293M, Pittsburgh, PA 15251. In addition, paragraph (b) of § 59.409 contains a sentence specifying that the exceedance fee payments should be by check or money order made payable to “U.S. Environmental Protection Agency” or “US EPA.”

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. Because EPA has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute (see section I.A of this preamble), it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601, et seq. ), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

This technical correction action does not involve technical standards; thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the Executive Order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq. ). The EPA's compliance with these statutes and executive orders for the underlying rule is discussed in the September 11, 1998 (63 FR 48848) Federal Register document.

The Congressional Review Act (CRA) (5 U.S.C. 801, et seq. ), as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary, or contrary to the public interest. This determination must be supported by a brief statement (5 U.S.C. 808(2)). As stated in section I.A of this preamble, EPA has made such a good cause finding, including the reasons therefor, and established an effective date of February 16, 2000. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in the table could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this action might apply to certain entities. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT.

1. Electronically . You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.EPA.gov/. To access this document, on the Home Page select “Laws and Regulations” and then look up the entry for this document under the “ Federal Register —Environmental Documents.” You can also go directly to the Federal Register listings at http://www.EPA.gov/fedrgstr/.

2. In person . The Agency has established an official record for this action under docket control number OPP-300969. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall 2 (CM 2), 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

EPA, on its own initiative, in accordance with sections 408(l)(6) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, is establishing tolerances for combined residues of the insecticide imidacloprid and its metabolites containing the 6-chloropyridinyl moiety, all expressed as parent, in or on sweet corn grain at 0.05 ppm, sweet corn forage at 0.1 ppm, and sweet corn fodder at 0.2 ppm. These tolerances will expire and are revoked on December 31, 2001. EPA will publish a document in the Federal Register to remove the revoked tolerances from the Code of Federal Regulations.

Section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of FIFRA. Such tolerances can be established without providing notice or period for public comment. EPA does not intend for its actions on section 18 related tolerances to set binding precedents for the application of section 408 and the new safety standard to other tolerances and exemptions.

Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

Section 18 of the FIFRA authorizes EPA to exempt any Federal or State agency from any provision of FIFRA, if EPA determines that “emergency conditions exist which require such exemption.” This provision was not amended by the Food Quality Protection Act (FQPA). EPA has established regulations governing such emergency exemptions in 40 CFR part 166.

The applicants requested this use of imidacloprid to control flea beetles on sweet corn due to both the direct damage caused by the flea beetles feeding on the corn (severely damged or killed corn seedlings) and the more important problem of the flea beetles vectoring the bacterium Erwinia stewartii , which causes Stewart's bacterial wilt disease in sweet corn. Without the use of imidacloprid, sweet corn growers would experience severe yield and economic losses. EPA has authorized under FIFRA section 18 the use of imidacloprid on sweet corn seed in Minnesota and Idaho. The corn seed will be authorized to planted in States where the corn flea beetle is creating an emergency situation. After having reviewed the submission, EPA concurs that emergency conditions exist for these States.

As part of its assessment of this emergency exemption, EPA assessed the potential risks presented by residues of imidacloprid in or on sweet corn grain, forage, and fodder. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and EPA decided that the necessary tolerances under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemption in order to address an urgent non-routine situation and to ensure that the resulting food is safe and lawful, EPA is issuing these tolerances without notice and opportunity for public comment as provided in section 408(l)(6). Although these tolerances will expire and are revoked on December 31, 2001, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerances remaining in or on sweet corn grain, forage, and fodder after that date will not be unlawful, provided the pesticide is applied in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by this tolerance at the time of that application. EPA will take action to revoke this tolerance earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

Because these tolerances are being approved under emergency conditions, EPA has not made any decisions about whether imidacloprid meets EPA's registration requirements for use on sweet corn seed or whether permanent tolerances for this use would be appropriate. Under these circumstances, EPA does not believe that these tolerances serve as a basis for registration of imidacloprid by a State for special local needs under FIFRA section 24(c). Nor do these tolerances serve as the basis for any State other than Minnesota and Idaho to use this pesticide on this crop under section 18 of FIFRA without following all provisions of EPA's regulations implementing section 18 as identified in 40 CFR part 166. For additional information regarding the emergency exemption for imidacloprid, contact the Agency's Registration Division at the address provided under FOR FURTHER INFORMATION CONTACT.

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 and a complete description of the risk assessment process, see the final rule on Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997) (FRL-5754-7).

Consistent with section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of imidacloprid and to make a determination on aggregate exposure, consistent with section 408(b)(2), for a time-limited tolerance for combined residues of imidacloprid and its metabolites containing the 6-chloropyridinyl moiety, all expressed as parent on sweet corn grain at 0.05 part per million (ppm), sweet corn forage at 0.1 ppm, and sweet corn fodder at 0.2 ppm. EPA's assessment of the dietary exposures and risks associated with establishing the tolerance follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The nature of the toxic effects caused by imidacloprid are discussed in this unit.

Only acute and chronic dietary endpoints were defined. The 10X FQPA factor was reduced to 3X for acute and chronic exposure, and applies to all population subgroups.

1. Acute toxicity . The acute Reference Dose (RfD) is 0.42 milligrams/kilograms/body weight/day (mg/kg bwt/day) based on a lowest observed adverse effect level (LOAEL) of 42 mg/kg bwt/day based on decreased motor activity in female rats. An additional 3X FQPA factor was incorporated for all population subgroups to account for neurotoxicity, structure-activity concerns and lack of a no observed adverse effect level (NOAEL). The acute population adjusted dose (aPAD), which is the RfD/3 was calculated to be 0.14 mg/kg bwt/day. Acceptable acute dietary exposure (food plus water) of 100% or less of the aPAD is required for all population subgroups.

2. Short- and intermediate-term toxicity. Dermal and inhalation short- and intermediate-term risk assessments are not required for imidacloprid as dermal and inhalation exposure endpoints were not identified due to the demonstrated absence of toxicity, however, because imidacloprid is registered for use on turf, home gardens and pets, EPA has identified potential short-term oral exposures to children for these uses.

A short-term oral endpoint was not identified for imidacloprid. According to current OPP policy, if an oral endpoint is needed for short-term risk assessment (for incorporation of food, water, or oral hand-to-mouth type exposures into an aggregate risk assessment), the acute oral endpoint (LOAEL = 42 mg/kg bwt/day) will be used to incorporate the oral component into aggregate risk.

3. Chronic toxicity . EPA has established the RfD for imidacloprid at 0.057 mg/kg/day. This RfD is based on increased number of thyroid lesions at the LOAEL of 16.9/24.9 mg/kg bwt/day (males & females, respectively). An additional 3X FQPA factor was used for all population subgroups. The chronic population adjusted dose (cPAD), which is the RfD/3 was calculated to be 0.019 mg/kg bwt/day. Acceptable chronic dietary exposure (food plus water) of 100% or less of the cPAD is required for all population subgroups.

4. Carcinogenicity . Imidacloprid has been classified by the Agency as a Group E chemical, no evidence of carcinogenicity for humans, thus, a cancer risk assessment is not required.

1. From food and feed uses. Tolerances, some time-limited, are currently established (40 CFR 180.472) for the combined residues of the insecticide imidacloprid and its metabolites containing the 6-chloropyridinyl moiety, all expressed as parent, in or on a variety of raw agricultural and animal commodities at levels ranging from 0.02 ppm in eggs to 15 ppm in raisins, waste. Risk assessments were conducted by EPA to assess dietary exposures and risks from imidacloprid as follows:

i. Acute exposure and risk. Acute dietary risk assessments are performed for a food-use pesticide if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

In conducting the acute dietary (food) risk assessment, EPA used the Theoretical Maximum Residue Contribution (TMRC) which assumes tolerance level residues and 100% crop-treated (Tier 1). The analysis evaluates individual food consumption as reported by respondents in the USDA Continuing Surveys of Food Intake by Individuals conducted in 1989 through 1992. The model accumulates exposure to the chemical for each commodity and expresses risk as a function of dietary exposure. Resulting exposure values (at the 95th percentile) and percentage of aPAD utilized ranged from 22% for the United States (U.S.) population to 44% for children 1-6 years old.

ii. Chronic exposure and risk. In conducting the chronic dietary (food only) risk assessment, EPA used: (1) Tolerance level residues for imidacloprid; and, (2) percent crop-treated (PCT) information for some of these crops. The analysis evaluates individual food consumption as reported by respondents in the USDA Continuing Surveys of Food Intake by Individuals conducted in 1989 through 1992. The percentages of cPAD consumed for the general population and subgroups of interest ranged from 9.2% for nursing infants 1 year old to 48.5% for children 1-6 years old.

Section 408(b)(2)(E) authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide chemicals that have been measured in food. If EPA relies on such information, EPA must require that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. Following the initial data submission, EPA is authorized to require similar data on a time frame it deems appropriate. As required by section 408(b)(2)(E), EPA will issue a data call-in for information relating to anticipated residues to be submitted no later than 5 years from the date of issuance of this tolerance.

Section 408(b)(2)(F) states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if the Agency can make the following findings: Condition 1, that the data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain such pesticide residue; Condition 2, that the exposure estimate does not underestimate exposure for any significant subpopulation group; and Condition 3, if data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area. In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by section 408(b)(2)(F), EPA may require registrants to submit data on PCT.

The Agency used PCT information as follows.

The Agency believes that the three conditions listed above have been met. With respect to Condition 1, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. EPA uses a weighted average PCT for chronic dietary exposure estimates. This weighted average PCT figure is derived by averaging State-level data for a period of up to 10 years, and weighting for the more robust and recent data. A weighted average of the PCT reasonably represents a person's dietary exposure over a lifetime, and is unlikely to underestimate exposure to an individual because of the fact that pesticide use patterns (both regionally and nationally) tend to change continuously over time, such that an individual is unlikely to be exposed to more than the average PCT over a lifetime. For acute dietary exposure estimates, EPA uses an estimated maximum PCT. The exposure estimates resulting from this approach reasonably represent the highest levels to which an individual could be exposed, and are unlikely to underestimate an individual's acute dietary exposure. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimated. As to Conditions 2 and 3, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available information on the regional consumption of food to which imidacloprid may be applied in a particular area.

2. From drinking water . There is no established Maximum Contaminant Level for residues of imidacloprid in drinking water. No health advisory levels for imidacloprid in drinking water have been established.

Imidacloprid is persistent, water soluble, and fairly mobile. Thus, residues of imidacloprid may be transported to both surface and ground waters. As a condition of registration, the Agency is requiring the submission of the results of two prospective ground water monitoring studies. Results from these studies are not yet available.

i. Acute exposure and risk . Estimated concentrations of imidacloprid in surface and ground water used for the acute exposure analysis were 4.1 and 1.1 m g/L (ppb), respectively. These estimated concentrations of imidacloprid in surface and ground water were based upon an application rate of 0.5 lbs ai/A/year.

For purposes of risk assessment, the estimated maximum concentration for imidacloprid in surface and ground waters (which is 4.1 m g/L) should be used for comparison to the back-calculated human health drinking water levels of concern (DWLOCs) for the acute endpoint. The DWLOCs ranged from 780 m g/L for children 1-6 years old to 3,900 m g/L for the U.S. population. These figures are well above the drinking water estimate concentration (DWEC) of 4.1 m g/L.

ii. Chronic exposure and risk . Estimated concentrations of imidacloprid in surface and ground water for chronic exposure analysis were 0.1 and 1.1 m g/L (ppb), respectively. These estimated concentrations of imidacloprid in surface and ground water were based upon an application rate of 0.5 lbs ai/A/year.

For purposes of chronic risk assessment, the estimated maximum concentration for imidacloprid in ground waters (which is 1.1 m g/L) should be used for comparison to the back-calculated human health DWLOCs for the chronic (non-cancer) endpoint. The DWLOCs ranged from 98 m g/L for children 1-6 years old to 490 m g/L for Non-hispanic males (other than black or white). These figures are well above the DWEC of 1.1 m g/L.

3. From non-dietary exposure . Imidacloprid is currently registered for use on the following residential non-food sites: ornamentals (e.g., flowering and foliage plants, ground covers, turf, lawns, et al.), tobacco, golf courses, walkways, recreational areas, household or domestic dwellings (indoor/outdoor), and cats/dogs.

i. Acute exposure and risk . Occupational/residential exposure risk assessments (namely, short-term dermal, intermediate-term dermal, long-term dermal, and inhalation) are not required owing to the demonstrated absence of dermal and inhalation toxicity.

ii. Chronic exposure and risk . Occupational/residential exposure risk assessments (namely, short-term dermal, intermediate-term dermal, long-term dermal, and inhalation) are not required owing to the demonstrated absence of dermal and inhalation toxicity.

iii. Short- and intermediate-term exposure and risk . Short- and intermediate-term oral exposure are not expected for adult population subgroups. However, since imidacloprid is registered for use on turf, home gardens and pets, EPA has identified potential short-term oral exposures to children for these uses. Thus, a residential short-term risk assessment via the oral route is required. See section III(E)(4) for a full discussion of this exposure and risk.

4. Cumulative exposure to substances with a common mechanism of toxicity . Section 408(b)(2)(D)(v) requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA does not have, at this time, available data to determine whether imidacloprid has a common mechanism of toxicity with other substances or how to include this pesticide in a cumulative risk assessment. Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, imidacloprid does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that imidacloprid has a common mechanism of toxicity with other substances. For more information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the final rule for Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997).

1. Acute risk . EPA has determined that the acute exposure to imidacloprid from food will utilize 22% of the aPAD (95th percentile) for the most highly exposed population subgroup (U.S. population - all seasons). Despite the potential for exposure to imidacloprid in drinking water, the Agency does not expect the aggregate exposure to exceed 100% of the aPAD. The DWLOC calculated for the U.S. population was 3900 m g/L, which is well above the DWEC of 4.1 m g/L.

2. Chronic risk. In conducting the chronic dietary (food only) risk assessment, EPA used: (1) tolerance level residues for imidacloprid; and, (2) PCT information for some of these crops. The analysis evaluates individual food consumption as reported by respondents in the USDA Continuing Surveys of Food Intake by Individuals conducted in 1989 through 1992. The percentage of cPAD consumed for the U.S. population was 22%. The major identifiable subgroup with the highest aggregate exposure is discussed below. EPA generally has no concern for exposures below 100% of the cPAD because the cPAD represents the level at or below which daily aggregate dietary exposure over a lifetime will not pose appreciable risks to human health. Despite the potential for exposure to imidacloprid in drinking water, the Agency does not expect the aggregate exposure to exceed 100% of the cPAD. The DWLOC calculated for the U.S. population was well above the DWEC of 1.1 m g/L.

3. Short- and intermediate-term risk . Short- and intermediate-term aggregate exposure takes into account chronic dietary food and water (considered to be a background exposure level) plus indoor and outdoor residential exposure.

Dermal and inhalation short- and intermediate term risk assessments are not required for imidacloprid as dermal and inhalation exposure endpoints were not identified due to the demonstrated absence of toxicity. Short- and intermediate-term oral exposure are not expected for adult population subgroups. A discussion of short and intermediate term oral exposure and risk for children 1-6 can be found in section III(E)(4).

4. Aggregate cancer risk for U.S. population . Imidacloprid has been classified as a Group E chemical, no evidence of carcinogenicity for humans, thus, a cancer risk assessment is not required.

5. Determination of safety . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result from aggregate exposure to imidacloprid residues.

1. Safety factor for infants and children — i. In general . In assessing the potential for additional sensitivity of infants and children to residues of imidacloprid, EPA considered data from developmental toxicity studies in the rat and rabbit and a 2-generation reproduction study in the rat. The developmental toxicity studies are designed to evaluate adverse effects on the developing organism resulting from maternal pesticide exposure during gestation. Reproduction studies provide information relating to effects from exposure to the pesticide on the reproductive capability of mating animals and data on systemic toxicity.

FFDCA section 408 provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA determines that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a margin of exposure (MOE) analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans. EPA believes that reliable data support using the standard MOE and uncertainty factor (usually 100 for combined interspecies and intraspecies variability) and not the additional tenfold MOE/uncertainty factor when EPA has a complete data base under existing guidelines and when the severity of the effect in infants or children or the potency or unusual toxic properties of a compound do not raise concerns regarding the adequacy of the standard MOE/safety factor.

ii. Developmental toxicity studies. In a developmental toxicity study with Sprague-Dawley rats, groups of pregnant animals (25/group) received oral administration of imidacloprid (94.2%) at 0, 10, 30, or 100 mg/kg bwt/day during gestation days 6 through 16. Maternal toxicity was manifested as decreased body weight gain at all dose levels and reduced food consumption at 100 mg/kg bwt/day. No treatment-related effects were seen in any of the reproductive parameters (i.e., Cesarean section evaluation). At 100 mg/kg bwt/day, developmental toxicity manifested as wavy ribs (fetus =7/149 in treated vs. 2/158 in controls and litters, 4/25 vs. 1/25). For maternal toxicity, the LOAEL was 10 mg/kg bwt/day lowest dose tested (LDT) based on decreased body weight gain; a NOAEL was not established. For developmental toxicity, the NOAEL was 30 mg/kg bwt/day and the LOAEL was 100 mg/kg bwt/day based on increased wavy ribs.

In a developmental toxicity study with Chinchilla rabbits, groups of 16 pregnant does were given oral doses of imidacloprid (94.2%) at 0, 8, 24 or 72 mg/kg bwt/day during gestation days 6 through 18. For maternal toxicity, the NOAEL was 24 mg/kg bwt/day and the LOAEL was 72 mg/kg bwt/day based on mortality, decreased body weight gain, increased resorptions, and increased abortions. For developmental toxicity, the NOAEL was 24 mg/kg bwt/day and the LOAEL was 72 mg/kg bwt/day based on decreased fetal body weight, increased resorptions, and increased skeletal abnormalities.

iii. Reproductive toxicity study . In a 2-generation reproductive toxicity study, imidacloprid (95.3%) was administered to Wistar/Han rats at dietary levels of 0, 100, 250, or 700 ppm (0, 7.3, 18.3, or 52.0 mg/kg bwt/day for males and 0, 8.0, 20.5, or 57.4 mg/kg bwt/day for females). For parental/systemic/reproductive toxicity, the NOAEL was 250 ppm (18.3 mg/kg bwt/day) and the LOAEL was 750 ppm (52 mg/kg bwt/day), based on decreases in body weight in both sexes in both generations. Based on these factors, the Agency determined that the review be revised to indicate the parental/systemic/reproductive NOAEL and LOAEL to be 250 and 700 ppm, respectively, based upon the body weight decrements observed in both sexes in both generations.

iv. Prenatal and postnatal sensitivity . The developmental toxicity data demonstrated no increased sensitivity of rats or rabbits to in utero exposure to imidacloprid. In addition, the multi-generation reproductive toxicity study data did not identify any increased sensitivity of rats to in utero or postnatal exposure. Parental NOAELs were lower or equivalent to developmental or offspring NOAELs.

v. Conclusion . There is a need for a developmental neurotoxicity study for assessment of potential alterations of functional development. However, the Agency has determined that this data gap does not preclude the establishment/continuance of tolerances. The 10X safety factor to account for enhanced sensitivity of infants and children (as required by FQPA) was reduced to 3X and the factor applies to all population subgroups.

2. Acute risk . Using the conservative TMRC exposure assumptions described above, and taking into account the completeness and reliability of the toxicity data, EPA has estimated the acute exposure to imidacloprid from food for the most highly exposed population subgroup (Children 1-6 years) will utilize 44% of the aPAD. It was determined that an acceptable acute dietary exposure (food plus water) of 100% or less of the aPAD is needed to protect the safety of all population subgroups. Despite the potential for exposure to imidacloprid in drinking water, EPA does not expect the aggregate exposure to exceed 100% of the aPAD for children 1-6 years old. The maximum concentration of imidacloprid in surface and ground water for acute exposure is very small (4.1 m g/L) compared to the DWEC of 780 m g/L.

3. Chronic risk . Using the exposure assumptions described in this unit, EPA has concluded that aggregate exposure to imidacloprid from food will utilize 48% of the cPAD for infants and children. EPA generally has no concern for exposures below 100% of the cPAD because the cPAD represents the level at or below which daily aggregate dietary exposure over a lifetime will not pose appreciable risks to human health. Despite the potential for exposure to imidacloprid in drinking water, EPA does not expect the aggregate exposure to exceed 100% of the cPAD for children 1-6 years old. The maximum concentration of imidacloprid in surface and ground water for acute exposure is very small (1.1 m g/L) compared to the DWEC of 98 m g/L.

4. Short- or intermediate-term risk . As noted earlier in this document, dermal and inhalation short- and intermediate term risk assessments are not required for imidacloprid as dermal and inhalation exposure endpoints were not identified due to the demonstrated absence of toxicity. Short- and intermediate-term oral exposure are not expected for adult population subgroups. However, since imidacloprid is registered for use on turf, home gardens and pets, EPA has identified potential short-term oral exposures to children for these uses.

A short-term oral endpoint was not identified for imidacloprid. According to current OPP policy, if an oral endpoint is needed for short-term risk assessment (for incorporation of food, water, or oral hand-to-mouth type exposures into an aggregate risk assessment), the acute oral endpoint (LOAEL = 42 mg/kg bwt/day) will be used to incorporate the oral component into aggregate risk.

The margin of exposure for chronic dietary exposure (food only) and residential exposure (hand-to-mouth from turf, garden, and pet uses) for children age 1-6 was calculated to be 302. The safe level for imidacloprid is 300.

Potential short-term exposure from drinking water is at a level below the Agency's level of concern with the DWLOC (10 m g/L) being greater than the DWEC of 1.1 m g/L.

The Agency concludes the short-term aggregate risk to the highest exposed population subgroup (children, 1 to 6 years old) from home garden, turf, and pet uses of imidacloprid does not exceed EPA's level of concern.

5. Determination of safety . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to imidacloprid residues.

The nature of imidacloprid residues in plants and in animals is adequately understood. The residue of concern is imidacloprid and its metabolites containing the 6-chloropyridinyl moiety, all expressed as parent, as specified in 40 CFR 180.472.

Adequate enforcement methodology is available to enforce the tolerance expression. The method may be requested from: Calvin Furlow, PIRIB, IRSD (7502C), Office of Pesticide Programs, Environmental Protection Agency, Ariel Rios Bldg., 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 305-5229; e-mail address: furlow.calvin@EPA.gov.

Crop field trials on field corn seed treatment (with the same use rate as on sweet corn seeds) have been submitted), and residues of imidacloprid are not expected to exceed 0.05 ppm in corn grain, 0.1 ppm in forage, and 0.2 ppm in fodder. The Agency has translated these residue results to sweet corn, and thus, residues of imidacloprid are not expected to exceed 0.05 ppm in sweet corn grain, 0.1 ppm in forage, and 0.2 ppm in fodder with its use on sweet corn seed.

There are no CODEX, Canadian, or Mexican Maximum Residue Limits (MRL) for imidacloprid on sweet corn. Thus, harmonization is not an issue for these time limited tolerances.

The rotational crop restrictions follow the original section 3 labels.

Therefore, the tolerance is established for the combined residues of imidacloprid and its metabolites containing the 6-chloropyridinyl moiety, all expressed as parent on sweet corn grain at 0.05 ppm, sweet corn forage at 0.1 ppm, and sweet corn fodder at 0.2 ppm.

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA of 1996, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) provides essentially the same process for persons to “object” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d), as was provided in the old FFDCA sections 408 and 409. However, the period for filing objections is now 60 days, rather than 30 days.

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-300969 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before April 17, 2000.

1. Filing the request . Your objection must specify the specific provisions in the regulation that you object to, and the grounds for the objections (40 CFR 178.25). If a hearing is requested, the objections must include a statement of the factual issues(s) on which a hearing is requested, the requestor's contentions on such issues, and a summary of any evidence relied upon by the objector (40 CFR 178.27). Information submitted in connection with an objection or hearing request may be claimed confidential by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. A copy of the information that does not contain CBI must be submitted for inclusion in the public record. Information not marked confidential may be disclosed publicly by EPA without prior notice.

Mail your written request to: Office of the Hearing Clerk (1900), Environmental Protection Agency, Ariel Rios Bldg., 1200 Pennsylvania Ave., NW., Washington, DC 20460. You may also deliver your request to the Office of the Hearing Clerk in Rm. M3708, Waterside Mall, 401 M St., SW., Washington, DC 20460. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 260-4865.

2. Tolerance fee payment . If you file an objection or request a hearing, you must also pay the fee prescribed by 40 CFR 180.33(i) or request a waiver of that fee pursuant to 40 CFR 180.33(m). You must mail the fee to: EPA Headquarters Accounting Operations Branch, Office of Pesticide Programs, P.O. Box 360277M, Pittsburgh, PA 15251. Please identify the fee submission by labeling it “Tolerance Petition Fees.”

EPA is authorized to waive any fee requirement “when in the judgement of the Administrator such a waiver or refund is equitable and not contrary to the purpose of this subsection.” For additional information regarding the waiver of these fees, you may contact James Tompkins by phone at (703) 305-5697, by e-mail at tompkins.jim@EPA.gov, or by mailing a request for information to Mr. Tompkins at Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, Ariel Rios Bldg., 1200 Pennsylvania Ave., NW., Washington, DC 20460.

If you would like to request a waiver of the tolerance objection fees, you must mail your request for such a waiver to: James Hollins, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, Ariel Rios Bldg., 1200 Pennsylvania Ave., NW., Washington, DC 20460.

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit VII.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by the docket control number OPP-300969, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, Ariel Rios Bldg., 1200 Pennsylvania Ave., NW., Washington, DC 20460.

In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@EPA.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 file format or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).

This final rule establishes time limited tolerances under FFDCA section 408. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any prior consultation as specified by Executive Order 13084, entitled Consultation and Coordination with Indian Tribal Governments (63 FR 27655, May 19, 1998); special considerations as required by Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or require OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a FIFRA section 18 petition under FFDCA section 408, such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4).

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

Therefore, 40 CFR chapter I is amended as follows:

This is a summary of the Order on Remand in CC Docket 98-147, 98-11, 98-26, 98-78, 98-91, FCC 99-413, adopted on December 23, 1999 and released on December 23, 1999. The complete text of the Order on Remand is available for inspection and copying during normal business hours in the FCC Reference Information Center, Courtyard Level, 445 12th Street, S.W., Washington, D.C. and also may be purchased from the Commission's copy contractor, International Transcription Services (ITS Inc.), CY-B400, 445 12th Street, S.W., Washington, D.C.

1. We conclude that advanced services are telecommunications services. The Commission has repeatedly held that specific packet-switched services are “basic services,” that is to say, pure transmission services. xDSL and packet switching are simply transmission technologies. We find that “information access service” is not a category separate and distinct from telephone service and exchange access. We also affirm our initial view in the Advanced Services Memorandum Opinion and Order, 63 FR 45140, August 24, 1998, that xDSL-based advanced services are either telephone exchange service or exchange access. We clarify that whether xDSL-based advanced services constitute telephone exchange service or exchange access depends on how such technology is used.

2. We first address whether a service that employs xDSL technology may be classified as telephone exchange service within the meaning of the Act. The 1996 Act provides two alternative definitions for the term “telephone exchange service.” The first definition, which is codified in section 3(47)(A), provides that telephone exchange service includes “service within a telephone exchange, or within a connected system of telephone exchanges within the same exchange area operated to furnish to subscribers intercommunicating service of the character ordinarily furnished by a single exchange, and which is covered by the exchange service charge.” The second definition, which is codified in section 3(47)(B), provides that the term also includes “comparable service provided through a system of switches, transmission equipment, or other facilities (or combination thereof) by which a subscriber can originate and terminate a telecommunications service.” In the Advanced Services Memorandum Opinion and Order, we noted that section 3(47)(B) was added to ensure that the definition of telephone exchange service was not limited to traditional voice telephony, but included non-traditional “means of communicating information within a local area.”

3. We conclude that xDSL-based advanced services, when used to permit communications among subscribers within an exchange, or within a connected system of exchanges, constitute telephone exchange services within the meaning of section 3(47)(A) of the Act. Consistent with this, the Commission has expressly made the rules governing basic telephone exchange service equally applicable to LEC provision of data and voice services. The parties have not persuaded us that we should depart from this long-standing practice. Indeed, in this era of converging technologies, limiting the telephone exchange service definition to voice-based communications would undermine a central goal of the 1996 Act—opening local markets to competition to all telecommunications services. We thus conclude, consistent with past practice, that the term “telephone exchange service” encompasses voice and data services.

4. We recognize that, in the GTE ADSL Tariffing Order, CC Docket 98-79, FCC 98-292, May 29, 1998, the Commission noted that a dedicated connection between an end-user and an Internet service provider's point of presence is similar to private line service. We do not find, however, that such an observation is relevant with respect to determining whether services that employ xDSL technology may constitute telephone exchange service within the meaning of the Act. Rather, the key criterion for determining whether a service falls within the scope of the telephone exchange service definition is whether it permits “intercommunication.” As noted above, in this regard, xDSL-based advanced service and private line service are distinguishable in that xDSL-based services permit intercommunication and private line services do not.

5. The final requirement in section 3(47)(A) is that telephone exchange services be covered by “the exchange service charge.” Although this term is not defined in the Act or the Commission's rules we glean its meaning from the context in which the phrase is used. We agree with those commenters who argue that the phrase implies that an end-user obtains the ability to communicate within the equivalent of an exchange area as a result of entering into a service and payment agreement with a provider of a telephone exchange service. We thus find that any charges that a LEC assesses for originating and terminating xDSL-based advanced services within the equivalent of an exchange area would be covered by the “exchange service charge.”

6. We thus reject the contention that, because the price of xDSL-based services is not included within the price of basic local telephone service, such services are not covered by “the exchange service charge.” Indeed, we note that, in a competitive environment, where there are multiple local service providers and multiple services, there will be no single “exchange service charge.” We further note that, if a service otherwise satisfies the telephone exchange service definition, a LEC has the option of including the price of that service within the price it charges consumers for basic local telephone service.

7. We conclude that a service falls within the scope of section 3(47)(B) if it permits intercommunication within the equivalent of a local exchange area and is covered by the exchange service charge. In setting forth the types of services that may fall within the scope of section 3(47)(B), Congress determined, as an initial matter, that such services must be “comparable” to the services described in section 3(47)(A). Although the term “comparable” is not defined in the Act, it is generally understood to mean “having enough like characteristics and qualities to make comparison appropriate.”

8. The xDSL-based advanced services at issue here, when they originate and terminate within an exchange area, satisfy the statutory definition of telephone exchange service under clause (B) of section 3(47) as well, and that clause provides an alternative basis for our conclusion that these services may constitute telephone exchange services. We note that neither the statutory text nor the legislative history accompanying section 3(47)(B) provides guidance on which characteristics and qualities must be present in order for a service to fall within the scope of section 3(47)(B). In these circumstances, we presume that Congress sought to provide the Commission with discretion in determining whether a particular telecommunications service is sufficiently “comparable” to the services described in section 3(47)(A) to constitute telephone exchange service within the meaning of the Act.

9. Because we find that the term “comparable” means that the services retain the key characteristics and qualities of the telephone exchange service definition under subparagraph (A), we reject the argument that subparagraph (B) eliminates the requirement that telephone exchange service permit “intercommunication” among subscribers within a local exchange area. As prior Commission precedent indicates, a key component of telephone exchange service is “intercommunication” among subscribers within a local exchange area.

10. The next question we address is whether, and under what circumstances, xDSL-based advanced services may be classified as exchange access under the Act. As we have previously found, xDSL-based advanced services that are used to connect ISPs with their subscribers to facilitate Internet bound traffic typically constitute exchange access service because the call initiated by the subscriber terminates at Internet websites located in other exchanges, states, or foreign countries.

11. The issue we address here is whether xDSL-based services may constitute exchange access under the Act. This question arises primarily in the context of services provided to ISPs to facilitate their provision of Internet access services. Applying the definitions contained in section 3 of the Act, we conclude that the service provided by the local exchange carrier to the ISP is ordinarily exchange access service because it enables the ISP to transport the communication initiated by the end-user subscriber located in one exchange to its ultimate destination in another exchange, using both the services of the local exchange carrier and in the typical case the telephone toll service of the telecommunications carrier responsible for the interexchange transport.

12. We evaluate two relevant definitions contained in the Act. Section 3(16), a new provision of the Act, defines “exchange access” as the offering of access to telephone exchange services or facilities for the purpose of the origination or termination of telephone toll service.” (emphasis added) Section 3(48), which was in the original Act, in turn defines “telephone toll service” as “telephone service between stations in different exchanges for which there is made a separate charge.” We conclude that because the local exchange carrier provides access permitting the ISP to complete the transmission from its subscriber's location to a destination in another exchange using the toll service it typically has purchased from the interexchange carrier, the access service provided by the local exchange carrier is for the “origination or termination of telephone toll service” within the meaning of the statutory definition. In reaching this conclusion, we further find that the interexchange carrier that provides the interexchange telecommunications to the ISP charges the ISP for those telecommunications and that charge is separate from the exchange service charge that the ISP or end user pays to the LEC. As a result, the “separate charge” requirement of section 3(48) is satisfied with respect to the underlying interexchange telecommunications.

13. We recognize that this analysis with respect to “exchange access” does not by its terms cover traffic jointly carried by an incumbent LEC and a competitive LEC to an ISP where the ISP self-provides the transport component of its internet service. We leave for another day the question of whether the LEC-provided portion of such traffic (which we believe to be rare) falls within the definition of “exchange access” in section 3(16) and whether, as a result, the incumbent LEC would be subject to the interconnection obligations of section 251(c)(2) with respect to such traffic. We find, however, that even if such traffic traveling over the facilities of an incumbent LEC and a competitive LEC to an ISP falls outside the scope of section 3(16) and is not covered by section 251(c)(2), the ILEC would nevertheless be subject to interconnection obligations imposed by section 251(a) and (to the extent that the service is interstate) section 201(a). Moreover, we note that, to the extent that the LEC-provided portion of such traffic may not fall within the definition of “exchange access,” the predominantly inter-exchange end-to-end nature of such traffic nevertheless renders it largely non-local for purposes of reciprocal compensation obligations of section 251(b)(5). In light of our authority to require interconnection under sections 201(a) and 251(a) even in the ISP self-provisioning context, we expect incumbent LECs to continue providing interconnection to competitive LECs without imposing tariff, certification or other requirements on competitive LECs requesting interconnection. We encourage parties alleging the imposition of such requirements to file complaints pursuant to section 208 of the Act.

14 We recognize that we did hold, in the Non-Accounting Safeguards Order, 62 FR 02991, January 21, 1997, that ISPs do not receive “exchange access services in connection with their provision of unregulated information services because of their status as non-carriers.” However, that Order constitutes a departure from other Commission precedent on this matter. In a contemporaneous Commission decision, the Local Competition Order, 61 FR 22008, May 13, 1996, we specifically stated that, although “[t]he vast majority” of exchange access service purchasers are telecommunications carriers, non-carriers “do occasionally purchase” such services. In fact, when the Non-Accounting Safeguard Order was issued, the question of whether an xDSL-based service offering directed at ISPs could be “exchange access” or “telephone exchange service” was not before the Commission. Indeed, such service was first offered more than a year after release of that Order.

15. On a more complete record in this proceeding, we correct the inconsistency in our prior orders and overrule the determination made in the Non-Accounting Safeguards Order that non-carriers may not use exchange access and affirm our determination in the Local Competition Order that non-carriers may be purchasers of those services. We find that this conclusion is consistent with the Commission's longstanding characterization of the service that LECs offer to enhanced services providers (which include ISPs) as exchange access. In MTS and WATS Markets Structure Order, 48 FR 33667, August 22, 1983, the Commission held that “[a]mong the variety of users of access service are * * * enhanced service providers.” As recognized in that case, the Commission has always required LECs to offer access services to parties that may not be common carriers. Similarly, we note that enhanced service providers use “exchange access service.” More recently, in the GTE ADSL Tariffing Order, we noted that “[t]he Commission traditionally has characterized the link from an end user to an ESP as an interstate access service.”

16. These holdings comport with the conclusion in the Local Competition Order that non-carriers may purchase exchange access services. This historical treatment properly serves as a lens through which to view Congress' intent in codifying a definition of “exchange access” in the 1996 Act. Nothing in the new definition of the Act or in its history suggests that Congress intended to narrow, for the first time, the availability of exchange access service to certain telecommunications service providers. For these reasons, we overrule our statements in the Non-Accounting Safeguards Order that non-carriers may not use exchange access, which we find to be inconsistent with our own precedent, and with the structure of the Act.

17. We find that, with respect to access to the local network for the purpose of originating or terminating an interexchange communication, any service that otherwise constitutes “special access” also falls within the definition of “exchange access.” We note that “special access” refers to a dedicated path between an end-user and a service provider's point of presence. We agree that special access, which provides access to the exchange through dedicated facilities, is different than switched access, which provides access to the exchange using switches. Both forms of access, however, provide access to exchange facilities, which is the pertinent point under the statutory definition of “exchange access.”

18. We also reject the contention that an incumbent LEC is not subject to section 251(c) for its provision of advanced services because such services are neither “telephone exchange services,” nor “exchange access services.” To the extent that it offers advanced services, U S West contends, it is not acting as a “local exchange carrier” or “incumbent local exchange carrier,” and the obligations imposed by section 251(c) on incumbent local exchange carriers do not apply. Because we have determined that advanced services offered by incumbent LECs are telephone exchange service or exchange access, we will not and do not address the section 251(c) obligations of an incumbent local exchange carrier offering services other than telephone exchange service or exchange access.

This is a synopsis of the Commission's Report and Order, MM Docket No. 99-10, adopted January 19, 2000, and released February 1, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center (Room 239), 445 12th Street, SW, Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW, Washington, DC 20036.

This is a synopsis of the Commission's Memorandum Opinion and Order, MM Docket No. 99-44, adopted January 12, 2000, and released February 1, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center (Room 239), 445 12th Street, SW, Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW, Washington, DC 20036.

This is a summary of the Commission's Order in MM Docket No. 99-305, adopted February 1, 2000, and released February 4, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center, 445 Twelfth Street, SW, Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractors, International Transcription Services, Inc., 1231 20th Street, NW., Washington, DC. 20036, (202) 857-3800, facsimile (202) 857-3805.

This is a summary of the Commission's Report and Order, MM Docket No. 99-306, adopted December 29, 1999 and released January 7, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center, 445 12th Street, SW, Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractors, International Transcription Services, Inc., 1231 20th Street, NW., Washington, DC. 20036, (202) 857-3800, facsimile (202) 857-3805.

This is a summary of the Commission's Report and Order, MM Docket No. 98-176, adopted January 19, 2000, and released February 2, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center, 445 Twelfth Street, SW, Washington, D.C. 20554. The complete text of this decision may also be purchased from the Commission's copy contractors, International Transcription Services, Inc., 1231 20th Street, NW., Washington, DC. 20036, (202) 857-3800, facsimile (202) 857-3805.

This is a synopsis of the Commission's Memorandum Opinion and Order, MM Docket No. 96-11, adopted January 27, 2000 and released February 4, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), at its headquarters, 445 12th Street S.W., Washington, D.C. The complete text of this decision may also be purchased from the Commission's copy contractors, International Transcription Service, Inc., (202) 857-3800, 1231 20th Street N.W., Washington, D.C. 20036.

This Memorandum Opinion & Order on Remand (MO&O on Remand) in PR Docket No. 93-144, adopted December 17, 1999, and released December 23, 1999, is available for inspection and copying during normal business hours in the FCC Reference Center, 445 Twelfth Street, SW, Washington DC. The complete text may be purchased from the Commission's copy contractor, International Transcription Service, Inc., 1231 20th Street, NW, Washington DC 20036 (202) 857-3800. The document is also available via the internet at http://www.fcc.gov/Bureaus/Wireless/Orders/1999/index2.html .

This action is taken pursuant to the order issued by the United States Court of Appeals for the District of Columbia Circuit in Fresno Mobile Radio, Inc., et al. v. Federal Communications Commission (Fresno) , 165 F.3d 965 (D.C. Cir. 1999). Upon further reconsideration, the Commission will allow incumbent wide-area licensees who were within their construction periods at the time Fresno was decided to satisfy construction requirements similar to those given to Economic Area licensees in the 800 MHz band. Incumbent wide-area licensees must file certifications of construction within fifteen (15) days after the licensee's applicable construction deadline or April 17, 2000, whichever is later.

Prior to December 1995, when the Commission amended its 800 MHz SMR rules to provide for geographic area licensing, 800 MHz SMR licenses were awarded on a site-by-site, channel-by-channel basis. If an SMR licensee failed to construct and begin operation on all authorized frequencies at a particular site, the unconstructed frequencies would automatically cancel. In 1991, the Commission began granting some SMR licensees extended implementation (EI) authority to construct their systems, whereby the licensee would have up to five years to construct all of the facilities within the wide-area “footprint” established by its licenses. At the end of the EI period, any frequency licensed at a specific site within the footprint that was not fully constructed and in operation would cancel automatically.

In December 1995, in the 800 MHz Order , 61 FR 6212 (Feb. 16, 1996) the Commission adopted a new wide-area licensing scheme by creating geographic-based licenses (Economic Area, or EA, licenses) for the upper 200 channels of the 800 MHz SMR band. As part of the new licensing scheme, the Commission adopted construction and coverage requirements for EA licensees similar to those required of broadband PCS and 900 MHz SMR licensees. In addition to creating rules for the new EA licensees, the Commission also concluded that continuation of the prior site-based extended implementation licensing process would be contrary to the new wide-area licensing plan.

The Commission decided to stop accepting new applications for extended implementation authority and dismissed all pending applications. The Commission also required licensees who had previously obtained EI authorizations to rejustify their authorizations by demonstrating that continuing to maintain their extended time to construct their facilities was warranted and in the public interest. If a wide-area licensee's rejustification of EI authority was found sufficient, the Commission would give the licensee two years from the decision to construct and begin operation, or maintain its original construction deadline, whichever was earlier. If the rejustification was not approved, the licensee's EI authorization would be terminated, and the licensee would be given six months from the termination date to complete construction of its site-based facilities. In May and November 1997, the Wireless Telecommunications Bureau (Bureau) acted on the rejustification submissions filed by thirty-seven wide-area licensees. Of the thirty-seven submissions, the Bureau approved thirty-one, including the rejustification submission of Southern Company, one of the petitioners in Fresno. The Bureau rejected the remaining six rejustification submissions because these licensees had not constructed any facilities during the period of extended implementation.

In the 800 MHz Reconsideration Order , 62 FR 41190 (July 31, 1997), the Commission also affirmed its decision that rejustified EI licensees would receive a maximum of two years to complete construction of their facilities. Any site-specific license within a licensee's wide-area “footprint” that was not constructed by the two-year deadline would be automatically cancelled, with the unconstructed frequencies reverting to the EA licensee. The Commission rejected the claim made by Southern that the two-year construction requirement for site-based EI licensees, which required full construction of all facilities, was unfairly discriminatory in comparison to the five-year build-out period for EA licensees, which required only partial coverage of the EA licensing area.

On September 26, 1997, Southern petitioned the United States Court of Appeals for the District of Columbia for review of the Commission's decision in the 800 MHz Reconsideration Order not to give incumbent wide-area SMR licensees the same construction requirements given to EA licensees. On February 5, 1999, the United States Court of Appeals for the District of Columbia held that the Commission had not adequately explained why incumbent wide-area SMR licensees were not allowed to apply the same coverage requirements as EA licensees, cellular licensees, or PCS licensees, given that they are substantially similar CMRS providers. The court rejected the Commission's argument that EA licensees who must pay for their licenses at auction have a greater incentive to construct than incumbent licensees who acquired their licenses for free, like the EI licensees. The court found the Commission had not fully considered whether incumbent wide-area licensees are sufficiently different from 800 MHz EA licensees, cellular licensees and PCS licensees to justify the different requirements, and therefore, remanded the matter to the Commission to reconsider the issue. In the interim, the court ordered that Southern Company should not be denied the benefit of the more liberal construction requirements applicable to EA licensees.

In light of the Fresno decision, the Bureau temporarily suspended the construction timetable for incumbent 800 MHz licensees whose EI rejustifications were approved by the Bureau in 1997. The Bureau then sought comment on whether the Commission should retain existing EI construction requirements, adopt new construction requirements for EI licensees that would be comparable to EA licensees' requirements, or consider some other alternative.

None of the comments received in response to the Bureau's Public Notice support the Commission's decision in the 800 MHz Reconsideration Order to maintain the existing construction requirements for incumbent wide-area SMR licensees ( i.e. , requiring build-out of all authorized sites on all frequencies).

The Commission concludes that SMR licensees granted extended implementation authority are sufficiently similar to EA licensees that they should have similar flexibility with respect to construction requirements. The record on remand demonstrates that incumbent wide-area SMR licensees such as Southern do provide service that is similar, if not identical, to that provided by EA licensees and other CMRS providers. Recognizing that these licensees may have constructed their systems in accordance with the requirements in place at the time ( i.e. , site-by-site, frequency-by-frequency), we will give eligible wide-area SMR licensees the option of complying with the terms of their EI authorizations or applying the EA construction requirements to their wide-area systems. We believe that giving incumbent wide-area SMR licensees the choice between applying the site- and frequency-specific requirements and the EA coverage requirements establishes reasonable parity between incumbent wide-area SMR licensees and EA licensees.

Construction Period. When an eligible wide-area licensee elects to apply the EA construction requirements to its system, the five-year construction period shall begin from the grant date of its extended implementation authority (“EI grant”) because that date is most analogous to the initial grant date of an EA license. Because the current EI incumbents have already had several years to build out their systems, we believe that adding five more years to their build-out periods on a cumulative basis would give incumbent wide-area SMR licensees an inequitable advantage over EA licensees. Moreover, eligible EI licensees will not be harmed by having the five years run from the date of EI grant because this alternative is still more flexible than the rules they have been operating under, which required them to construct all sites on all frequencies. Under the more flexible EA requirements, an eligible EI licensee will now be able to leave certain sites and frequencies unconstructed for potential future use. Finally, starting the EA construction period from the grant of EI authority provides a degree of certainty for EA licensees in the upper 200 channels that will soon be coming on their own three-year benchmark (which must be met regardless of the level of incumbency) and for bidders in the future auction of EA licenses in the lower 230 channels. Therefore, we will start the construction period for those eligible licensees who choose the EA construction requirements from the date of EI grant.

We will not require EI licensees to meet the interim three-year coverage requirement. Therefore, an eligible wide-area SMR licensee in the upper 200 channels, which elects to apply the EA construction requirements must have constructed and placed into operation a sufficient number of base stations to provide coverage to at least two-thirds of the population of its wide-area system within five years of EI grant plus the tolling period described below. A wide-area licensee exercising this option must demonstrate that it has constructed fifty percent of its total authorized upper 200 channels within its wide-area system. An incumbent wide-area licensee that is authorized for frequencies in the lower 230 channels and chooses the EA requirements may elect to demonstrate that it is providing substantial service within five years of EI grant, in lieu of the specific population coverage requirements, for those frequencies.

Effect of Tolling on Construction Deadline. By this MO&O on Remand , we hereby terminate the temporary suspension of the construction timetable for incumbent wide-area 800 MHz SMR licensees that was instituted by the Bureau's Public Notice. For all licensees entitled to relief under this decision, we will add 321 days to their construction periods, representing the amount of time between the Fresno decision and the release of this order. Therefore, the applicable construction deadline for any eligible incumbent wide-area SMR licensee that elects to apply the EA coverage requirements shall be five years from the date of EI grant plus 321 days. Likewise, the applicable construction deadline for incumbent wide-area SMR licensees that do not elect the EA requirements shall be 321 days after the EI deadline established in the 800 MHz Rejustification Order (rel. May 20, 1997).

Certification Filing. An incumbent wide-area 800 MHz SMR licensee that was within its construction period at the time of the Fresno decision must certify in a filing with the Bureau that it either met the EA construction requirements, as set out herein, or complied with the terms of its EI authorization. In addition to the certification, if a licensee chooses to meet the EA requirements for frequencies in the lower 230 channels using the substantial service option, it must demonstrate in the same filing with the Bureau how it is providing substantial service. All filings must be made within fifteen (15) days after the licensee's applicable construction deadline or April 17, 2000, whichever is later.

Class of Licensees Affected. The Fresno court ordered that the petitioner in the case, Southern Company, not be denied the benefit of EA-type construction requirements while the matter is pending before the Commission. The court did not, however, indicate what, if any, class of similar licensees should be accorded interim coverage requirements if the Commission reversed its decision. We extend the relief contained in this order to all 800 MHz licensees, such as Southern, who were granted extended implementation authority and were within their construction period at the time of the Fresno decision.

Two of the commenters, Chadmoore and Mobile Relays urge the Commission to apply EA-type construction requirements to either an expanded or a narrower class of licensees. Chadmoore argues that the Commission should extend the new construction requirements retroactively to any 800 MHz SMR incumbent licensee that has ever sought EI authority, whether or not it was granted. Chadmoore urges the Commission to reinstate these licenses and allow the licensees to demonstrate that they have met the interim coverage requirements. Mobile Relays urges the Commission to limit EA-type construction requirements to 800 MHz SMR frequencies held by wide-area licensees that have requested wide-area authorizations as part of a plan to convert and upgrade existing, analog SMR systems.

We conclude that all 800 MHz SMR licensees that have been granted extended implementation and were within their construction periods at the time of the Fresno decision should be given the opportunity to apply EA-type requirements. We decline to apply the EA-type construction requirements retroactively, as Chadmoore suggests. This would require reinstating licenses that have previously reached the expiration of their construction periods and been cancelled for failure to construct, in most cases over two years ago. We do not believe that reinstating these licenses would be in the public

We agree with Mobile Relays's suggestion that the relief in Fresno apply only to SMR frequencies. The Fresno court's decision specifically involves SMR frequencies, and the construction status of non-SMR frequencies, including Business and Industrial/Land Transportation frequencies converted under inter-category sharing for SMR use, is beyond the scope of this proceeding. However, we disagree with Mobile Relays's argument that relief should be limited only to EI licensees who are converting from analog to digital systems.

Area of Coverage. When determining if an eligible wide-area SMR licensee has met a specific coverage requirement ( i.e. , covering one-third or two-thirds of the population), the population should be measured using the licensee's wide-area “footprint” as established in the licensee's rejustification submission. A wide-area licensee may compute population covered within its footprint on a county basis using 1990 U.S. Census information. In cases where the footprint does not align with county boundaries, a wide-area licensee should include the entire population of the county if the licensee covers any portion of it.

Minimum Number of Frequencies. An EA licensee in the upper 200 channels of the 800 MHz band must construct and operate fifty percent of the total channels included in its spectrum block in at least one location in its respective EA-based service area within three years of initial license grant and retain such channel usage for the remainder of the five-year construction period (“channel use requirement”). We will require that wide-area licensees that elect to apply the EA construction requirements also meet such a requirement for those frequencies within their extended implementation authority that are in the upper 200 channels. We note that commenters generally disfavor imposing the channel use requirement for incumbent wide-area licensees. However, we interpret the channel use requirement for EA licensees in the upper 200 channels differently than the comments suggest. Instead of requiring fifty percent of the licensee's authorized channels to be constructed and in operation at one site, we interpret the requirement to mean that a licensee must construct and operate fifty percent of the channels throughout its licensed area, so that the aggregate number of channels in use is fifty percent of those authorized. The licensee may choose to meet the channel use requirement at one site, but may also choose to use any number of sites (but at least one site). Based on this interpretation, we believe that incumbent wide-area licensees are capable of meeting this requirement. Therefore, those incumbent wide-area licensees that do elect to apply EA construction requirements must also meet the same channel use requirement for their upper 200 channel frequencies that EA licensees in the upper 200 channels must meet.

In addition to the channel use requirement imposed on upper 200 channel EA licensees, Mobile Relays recommends that the Commission require that incumbent wide-area licensees demonstrate service by a minimum of two frequencies at each site. There is no justification for the two-frequency minimum, and that it would not provide regulatory parity between wide-area and EA licensees. Incumbent wide-area licensees, therefore, need only demonstrate coverage by constructing and operating one frequency at each site, with the exception, of the channel use requirement for frequencies in the upper 200 channels.

Any incumbent wide-area 800 MHz licensee that was still in its construction period as of the date of that decision may choose to apply either the existing site-by-site, frequency-by-frequency construction requirements or the EA construction requirements. Those licensees who choose the latter must certify in a filing with the Commission their compliance with the requirements within the later of fifteen days from their applicable construction benchmarks or April 17, 2000, whichever is later. Such a certification should include compliance with the channel use requirement, if applicable, and a demonstration of substantial service, if elected.

Supplementary Information: This MO&O on Remand contains a modified information collection, which has been submitted to the Office of Management and Budget for approval. As part of our continuing effort to reduce paperwork burdens, we invite the general public to take this opportunity to comment on the information collection contained in this MO&O on Remand , as required by the Paperwork Reduction Act of 1995, Pub. L. 104-13. Public comments should be submitted to OMB and the Commission, and are due thirty days from date of publication of this MO&O on Remand in the Federal Register . Comments should address: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.

OMB Approval Number: 3060-0307.

Title: Rules to Facilitate Future Development of SMR Systems in the 800 MHz Frequency Band.

Form No.: N/A.

Type of Review: Revision of a currently approved collection.

Respondents: Business or other for-profit.

Number of Respondents: 35.

Estimated Time Per Response: 2 hours.

Total Annual Burden: 70 hours.

Frequency of Response: Single response.

Total Annual Estimated Costs: $14,000. This cost includes an estimate that 100% of the respondents will hire an outside consultant at $200 per hour to prepare the information.

Needs and Uses: The Commission will use this information to determine whether wide-area SMR licensees have complied with the Commission's 800 MHz construction requirements for their respective systems.

Address: In addition to filing comments with the Secretary, a copy of any comments on the information collections contained herein should be submitted to Judy Boley, Federal Communications Commission, Room 1-C804, 445 12th Street, SW, Washington, DC 20554, or via the Internet to jboley@fcc.gov; and to Timothy Fain, OMB Desk Officer, 10236 NEOB, 725-17th Street, NW, Washington, DC 20503 or via the Internet to fain—t@al.eop.gov.

To assist the public in determining the possible impact on small entities of the requirements adopted in this MO&O on Remand , the Commission has prepared a Supplemental Final Regulatory Flexibility Analysis (Supplemental FRFA). The Office of Media Relations, Reference Operations Division, will send a copy of the MO&O on Remand , including this Supplemental FRFA, to the Chief Counsel for Advocacy of the Small Business Administration, in accordance with the Regulatory Flexibility Act.

This MO&O on Remand was initiated by order of the United States Court of Appeals for the District of Columbia in the case of Fresno Mobile Relays, Inc. v. Federal Communications Commission (Fresno). This MO&O on Remand allows incumbent wide-area 800 MHz SMR licensees who were within their construction periods at the time of the Fresno decision to choose between complying with the terms of their EI authorizations or applying construction requirements similar to those given to EA licensees. Therefore, this MO&O on Remand (1) gives the incumbent licensees greater flexibility to leave certain sites and frequencies unconstructed (for potential future use), (2) establishes reasonable regulatory parity between incumbent wide-area licensees and EA licensees in the 800 MHz SMR service, without prejudicing the interests of either, and (3) provides the 800 MHz SMR service with a degree of certainty for both current and future EA licensees.

This MO&O on Remand was initiated by order of the United States Court of Appeals for the District of Columbia. Therefore, there was no Initial Regulatory Flexibility Analysis.

The Regulatory Flexibility Act (RFA) directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by our rules. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” The provisions adopted in this MO&O on Remand will apply to approximately 30—35 current incumbent 800 MHz SMR operators, most of which may be considered small entities.

This MO&O on Remand gives eligible wide-area 800 MHz SMR licensees the option of complying with the terms of their EI authorizations or applying EA-type construction requirements to their wide area footprints. If a licensee chooses the former, it need only comply with the requirements already imposed by the Commission's rules.

The action taken by this MO&O on Remand not only gives eligible incumbent wide-area 800 MHz SMR licensees greater flexibility to leave certain sites and frequencies unconstructed (for potential future use), but also establishes reasonable parity between incumbent wide-area licensees and EA licensees in the 800 MHz SMR service. Eligible incumbent licensees need only report their compliance with the construction requirements in the same fashion that EA 800 MHz licensees do (i.e., in a certification and, if the substantial service option is elected, a demonstration).

The Commission shall send a copy of this Supplemental Final Regulatory Flexibility Analysis, along with this MO&O on Remand , in a report to Congress pursuant to the Small Business Enforcement Fairness Act of 1996, 5 U.S.C. 801(a)(1)(A).

Accordingly, it is ordered that incumbent wide-area 800 MHz SMR licensees eligible for relief as described herein must comply with the terms of their extended implementation authorizations or apply the alternative construction requirements described herein. This action is taken pursuant to the authority of section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i).

It is further ordered that incumbent wide-area 800 MHz SMR licensees eligible for relief as described herein must certify in a filing with the Wireless Telecommunications Bureau their compliance with the construction requirements as described herein within the later of fifteen days after the licensee's applicable construction deadline or April 17, 2000.

It is further ordered that the temporary suspension of the construction timetable for incumbent wide-area SMR licensees as set forth in Public Notice DA 99-698 released April 15, 1999, is terminated.

It is further ordered that the Commission's Consumer Information Bureau, the Reference Information Center, shall send a copy of this MO&O on Remand , including the Supplemental Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

Internet users may access all comments received by the U.S. DOT Dockets, Room PL-401, by using the universal resource locator (URL): http://dms.dot.gov. It is available 24 hours each day, 365 days each year. Please follow the instructions online for more information and help.

An electronic copy of this document may be downloaded by using a computer, modem and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service at (202) 512-1661. Internet users may reach the Office of the Federal Register's home page at: http://www.nara.gov/fedreg and the Government Printing Office's web page at: http://www.access.gpo.gov/nara.

In October 1999, the Secretary of Transportation rescinded the authority previously delegated to the Federal Highway Administrator to perform the motor carrier functions and operations, and to carry out the duties and powers related to motor carrier safety, that are statutorily vested in the Secretary. That authority was redelegated to the Director of the Office of Motor Carrier Safety (OMCS), a new office within the Department (see, 64 FR 56270, October 19, 1999, and 64 FR 58356, October 29, 1999). The OMCS had previously been the FHWA's Office of Motor Carriers (OMC).

The Motor Carrier Safety Improvement Act of 1999 established the Federal Motor Carrier Safety Administration as a new operating administration within the Department of Transportation, effective January 1, 2000 (Pub. L. 106-159, 113 Stat. 1748, December 9, 1999). Under 49 U.S.C. 113(f), the Administrator of the FMCSA is delegated authority to carry out the duties and powers vested in the Secretary by chapters 5, 51, 55, 57, 59, 133 through 149, 311, 315 and 317 of title 49, United States Code, as well as additional duties. Effective January 1, 2000, the Secretary rescinded the authority delegated to the Director of the OMCS and redelegated it to the Administrator of the FMCSA (65 FR 220, January 4, 2000).

The staff previously assigned to the FHWA's OMC, and then to the OMCS, are now assigned to the FMCSA. The motor carrier functions of the FHWA's Resource Centers and Division (i.e., State) Offices have been transferred without change to the FMCSA Resource Centers and FMCSA Division Offices, respectively. For the time being, all phone numbers and addresses are unchanged. Similarly, rulemaking activities begun under the auspices of the FHWA and continued under the OMCS will be completed by the FMCSA.

On April 29, 1996, the FHWA published a notice of proposed rulemaking (NPRM) proposing to amend its rules of practice for motor carrier administrative proceedings arising under the Federal Motor Carrier Safety and Hazardous Materials regulations (61 FR 18866). This proposal envisioned a comprehensive revision and reorganization of the rules of practice and motor carrier safety rating procedures, replacing 49 CFR parts 385 and 386 with new parts 361 through 364. On October 21, 1996, the FHWA published a supplemental notice of proposed rulemaking (SNPRM) which proposed making the revised rules of practice also applicable to proceedings arising under the ICCTA (Pub. L. 104-88, 109 Stat. 803) by inserting in the regulatory text references to the ICCTA and regulations implementing that statute (designated the commercial regulations) (61 FR 54601). The SNPRM also proposed to amend the rules of practice by incorporating the civil penalties provided in the ICCTA.

Following publication of the NPRM and the SNPRM, it was decided to incorporate revised rules of practice into the FHWA-initiated zero-base rulemaking proceeding, a comprehensive reorganization and redrafting of the Federal Motor Carrier Safety Regulations (FMCSRs) in a more reader-friendly format. Accordingly, the FMCSA plans to supersede the NPRM with a new proposal to be published in connection with the zero-base proceeding. As a result, final implementation of revised rules of practice will be delayed for an indefinite period of time.

The FMCSA believes, however, that it is necessary to implement the proposed expansion of the rules of practice to include ICCTA-related administrative proceedings without further delay. As stated in the SNPRM, civil penalty procedures for safety and hazardous materials violations are governed by part 386, while violations of the ICCTA and the commercial regulations are subject to 49 CFR part 1021, the old ICC civil penalty procedures. These two parts have significant differences. For example, part 386 requires recipients of civil forfeiture claim letters to reply within a specified time with prescribed information in order to administratively resolve the claim. Failure to respond may result in the entry of an administratively final agency order enforceable in court. On the other hand, part 1021 does not require responses to claim letters or establish specific procedures for resolving claims. Failure to respond does not result in an agency order. If an FMCSA investigation or compliance review discloses violations of both the safety and commercial regulations, the FMCSA would have to issue two separate claim letters and apply different administrative procedures in resolving the claim. The confusion and inefficiency engendered by these procedural dissimilarities would be eliminated by adopting uniform procedures for all FMCSA civil penalty proceedings.

The FHWA received no public comments in response to the October 1996 SNPRM. Because the proposal to apply the rules of practice to commercial violations is uncontroversial and can be accomplished by making relatively minor changes to the regulatory text of part 386, we are implementing this proposal immediately by amending part 386 rather than waiting for final implementation of revised rules of practice in connection with the zero-base rulemaking proceeding.

References to the ICCTA are added to § 386.1, which delineates the scope of the rules, and to the definition of “civil forfeiture proceedings” in § 386.2. A definition of “commercial regulations” is added to § 386.2 and that term is inserted in §§ 386.11 and 386.21. Section 386.81 is amended to reflect the fact that many of the penalties provided under the ICCTA are stated in terms of minimum, rather than maximum, amounts. This section is also amended to incorporate the ICCTA requirement that civil penalties related to the transportation of household goods be based on the degree of harm caused to the shipper and whether the shipper has been adequately compensated before institution of the civil penalty proceeding. The penalty schedule for part 386 (Appendix B) is amended to include the penalties prescribed in the ICCTA, as well as reflect changes to statutory penalties enacted in the MCSIA and the Transportation Equity Act for the 21st Century (TEA-21) (Pub. L. 105-178, 112 Stat. 107 (1998)). Prior to TEA-21, non-recordkeeping violations of the FMCSRs were classified as either Serious Patterns of Safety violations or Substantial Health or Safety violations. The TEA-21 eliminated these classifications, established a uniform maximum civil penalty of $10,000 for non-recordkeeping offenses, eliminated the “reckless disregard” and “gross negligence” liability standard for assessing civil penalties against employees, and raised the maximum penalty for employees to $2,500. The TEA-21 also reestablished a $500 penalty for recordkeeping violations and increased the maximum amount assessable for all offenses related to any single violation to $5,000. The penalty schedule, which had increased the penalty per violation to $550 in accordance with the Debt Collection Improvement Act of 1996 (Pub. L. 104-134, 110 Stat. 1321-358), is adjusted accordingly.

Technical amendments have been made to part 386 to reflect organizational changes brought about by the MCSIA. The responsibilities formerly exercised by the FHWA's Associate Administrator for Motor Carriers have been assumed by the FMCSA's Acting Deputy Administrator and Acting Chief Safety Officer, effective January 1, 2000. The responsibilities of the former FHWA's Office of Motor Carrier Safety Field Operations have been assumed by the new FMCSA's Office of Motor Carrier Enforcement. The FHWA restructuring also eliminated the FHWA's regional offices and transferred many of the responsibilities formerly held by the Regional Directors of Motor Carriers to the State Directors of Motor Carriers, who are now part of the FMCSA. Obsolete titles and organizational references have been removed and replaced by their current organizational equivalents.

Part 386 contains numerous statutory citations which have become obsolete as a result of recodification or repeal. These citations are updated to reflect the revised codification.

The FMCSA has determined that this action is not a significant regulatory action within the meaning of Executive Order 12866 or significant within the meaning of Department of Transportation regulatory policies and procedures. It is anticipated that the economic impact of this rulemaking will be minimal; therefore, a full regulatory evaluation is not required. The rulemaking merely amends provisions of the rules of practice for motor carrier safety and hazardous materials proceedings by making technical changes and expanding their application to proceedings arising under the ICC Termination Act of 1995. Because the DOT acquired new statutory responsibilities under the ICCTA, this action establishes one set of procedures and thereby reduces duplicative regulation. A regulatory evaluation is not required because of the ministerial nature of such action.

In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-612), the FMCSA has evaluated the effects of this rule on small entities. No economic impacts are foreseen as the rule imposes no additional substantive burdens that are not already required by the statutes and regulations to which these procedural rules apply. Accordingly, the FMCSA certifies that this action will not have a significant economic impact on a substantial number of small entities.

This rule does not impose a Federal mandate resulting in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. (2 U.S.C. 1531 et seq. ).

This action meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or safety that may disproportionately affect children.

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, dated August 4, 1999, and it has been determined this action does not have a substantial direct effect or sufficient federalism implications on States that would limit the policymaking discretion of the States. Nothing in this document directly preempts any State law or regulation.

Catalog of Federal Domestic Assistance Program Number 20.217, Motor Carrier Safety. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.

This action does not contain information collection requirements for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520.

The agency has analyzed this action for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) and has determined that this action would not have any effect on the quality of the environment.

A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross reference this action with the Unified Agenda.

In consideration of the foregoing and under the authority of section 103 of the ICC Termination Act of 1995, Public Law 104-88, 109 Stat. 803, and 49 CFR 1.73, the FMCSA amends title 49, chapter III, as follows:

The San Joaquin Valley of California is a large, north-south oriented, alluvial valley that is mostly farmed or developed. The San Joaquin Valley, from Stockton in the north to Bakersfield in the south, is approximately 690 kilometers (km) (430 miles (mi)) long and covers about 6,070,305 hectares (ha) (15 million acres (ac)). Tulare and Fresno Counties are located toward the southern end of the valley. One population of Sidalcea keckii occurs on private land toward the southern end of the valley, in south-central Tulare County. Another population of S. keckii occurs on a mixture of private and Federal lands in Fresno County.

Sidalcea keckii is a slender, hairy, erect annual herb belonging to the mallow family (Malvaceae). The species grows 1.5 to 3.3 decimeters (dm) (6 to 13 inches (in) tall. The lower leaf blades have seven to nine shallow lobes. The upper leaves have a tapered base with two to five notches in the upper lobes. A few deep pink flowers, 10 to 20 millimeters (mm) (0.4 to 0.8 in) wide, appear April through May. Seeds are smooth and pink-tinted. Sidalcea keckii closely resembles four other annual species of Sidalcea — S. calycosa, S. diploscyha, S. hartwegii, and S. hirsuta. Sidalcea calycosa and S. diploscyha have ranges that overlap with S. keckii. Sidalcea keckii can be separated from similar species by the number and size of flowers, the arrangement of stamens (male reproductive part), the lengths of the bract (a reduced leaf-like structure below the flower) and calyx (outermost segments of the flower), the presence of an aggregation of linear stipules (small, paired, leaf-like structures at the base of the leaves) and bracts surrounding the flower at maturity, the size and shape of the stem leaves, the density of hairs on the stems, and the presence of a purplish spot on the flower (Hickman 1993; John Stebbins, Fresno State University, in litt. 1994).

Wiggins (1940) described Sidalcea keckii from specimens collected in 1935 and 1938 near White River, Tulare County. Sidalcea keckii was known historically from 3 populations occurring between 120 to 425 meters (m) (400 to 1,400 feet (ft)) in elevation. However, it has not been seen at 2 of these sites for about 53 years (J. Stebbins, in litt. 1994), and the third site has not been relocated. The species was considered to be extirpated until 1992, when a new population of S. keckii was discovered by consultants conducting an environmental site inventory prior to construction of a subdivision (Woodward and Clyde Consultants 1992).

The habitat requirements of Sidalcea keckii are not well understood. The population of S. keckii in Tulare County (Tulare County population) occurs on 20- to 40-percent slopes of red or white-colored clay in sparsely-vegetated annual grasslands. The clays are thought to be derived from serpentine soils (soils high in magnesium, low in calcium, and laden with heavy metals). The Tulare County population covers an area measuring 30 m by 100 m (100 ft by 320 ft) and had a total of 60 plants in 1992 (Woodward and Clyde Consultants 1992). The population occurs on a privately owned, 280-ha (700 ac) parcel of land that is currently used for livestock grazing. A second new population of S. keckii was discovered on a mixture of private and public lands in Fresno County in 1998 (Fresno County population) and, at that time, consisted of 216 individual plants (Susan Carter, Bureau of Land Management, in litt. 1998). The Tulare County population is threatened by urban development, agricultural land conversion (particularly to citrus orchards), and grazing. Both populations are vulnerable to random events because of their small population sizes and numbers.

Federal Government actions on the plant began as a result of section 12 of the original Endangered Species Act (Act) of 1973, as amended (16 U.S.C. 1531 et seq. ), which directed the Secretary of the Smithsonian Institution to prepare a report on those plants considered to be endangered, threatened, or extinct in the United States. This report, designated as House Document No. 94-51, was presented to Congress on January 9, 1975. It included Sidalcea keckii as a threatened species. We published a notice on July 1, 1975 (40 FR 27823) of our acceptance of the report as a petition within the context of section 4(c)(2) (petition provisions are now found in section 4(b)(3) of the Act), and our intention to review the status of the plant taxa named therein. As a result of this review, we published a proposed rule in the Federal Register on June 16, 1976 (41 FR 24523) to determine approximately 1,700 vascular plant species to be endangered species pursuant to section 4 of the Act. This list, which did not include S. keckii, was assembled on the basis of comments and data received by the Smithsonian Institution and us in response to House Document No. 94-51, and the July 1, 1975, Federal Register publication.

We published an updated Notice of Review for plants on December 15, 1980 (45 FR 82480). This notice included Sidalcea keckii as a category 1 candidate, but it was noted that the species was possibly extinct. At that time, Category 1 candidates were defined as taxa for which we had on file substantial information on biological vulnerability and threats to support preparation of listing proposals. Category 2 candidates were defined as species for which information in our possession indicated that proposing to list the species as threatened or endangered was possibly appropriate, but for which we lacked substantial data on biological vulnerability and threats. The Category 1 designation for S. keckii was retained in the November 28, 1983 supplement to the Notice of Review (48 FR 53640), as well as subsequent revisions on September 27, 1985 (50 FR 39526), February 21, 1990 (55 FR 6184), and September 30, 1993 (58 FR 51143). We published a Notice of Review in the Federal Register on February 28, 1996 (61 FR 7596), that discontinued the use of different categories of candidates. In that notice, we defined candidates as species meeting the definition of former Category 1 species, and we retained Sidalcea keckii as a candidate species.

Section 4(b)(3)(B) of the Act requires us to make certain findings on pending petitions within 12 months of their receipt. Section 2(b)(1) of the 1982 amendments further requires that all petitions pending on October 13, 1982, be treated as having been newly submitted on that date. This situation applies to Sidalcea keckii, because of our acceptance of the 1975 Smithsonian report as a petition. On October 13, 1983, we found that the petitioned listing of the species was warranted, but precluded by other pending listing actions, in accordance with section 4(b)(3)(B)(iii) of the Act. A notice of this finding was published on January 20, 1984 (49 FR 2485). Such a finding requires the petition to be reviewed, pursuant to section 4(b)(3)(C)(i) of the Act. The species was included in candidate Notices of Review, published September 27, 1985 (50 FR 39528), February 21, 1990 (55 FR 6184), September 30, 1993 (58 FR 51144), February 28, 1996 (61 FR 7596), and October 25, 1999 (64 FR 57534).

We published a proposed rule to list Sidalcea keckii as endangered in the Federal Register on July 28, 1997 (62 FR 40325). The comment period was open until September 26, 1997. We extended the comment period to allow for a public hearing and other comments on September 24, 1997 (62 FR 49954), and the comment period closed on November 10, 1997. We again reopened the comment period on August 19, 1998 (63 FR 44417), to allow for additional information on the species. The comment period closed on October 5, 1998. We now determine Sidalcea keckii to be endangered with the publication of this rule.

The processing of this final listing rule conforms with our 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 Federal Lists of Endangered and Threatened Wildlife and Plants (Lists). Third priority is processing new proposals to add species to the Lists. The processing of administrative petition findings (petitions files under section 4 of the Act) is the fourth priority. The processing of critical habitat determinations (prudency and determinability decisions) will no longer be subject to prioritization under the Listing Priority Guidance. This final rule is a Priority 2 action and is being completed in accordance with the current Listing Priority Guidance. We have updated this rule to reflect any changes in information concerning distribution, status, and threats since the publication of the proposed rule.

In the July 28, 1997, proposed rule (62 FR 40325) and associated notifications, we requested that interested parties submit factual reports or information that might contribute to the final listing determination for Sidalcea keckii. We published announcements of the proposed rule and notice of the public hearing in the Tule River Times, Porterville Recorder, and the Visalia Times-Delta. We sent copies of the proposed rule to the Porterville Public Library and the Tulare County Free Library. The original comment period closed on September 26, 1997. We received one request for a public hearing from California Assemblyman Roy Ashburn. As a result, the comment period was extended until November 10, 1997 (62 FR 49954). We conducted a public hearing on the proposed listing at the Visalia Convention Center, Visalia, California on October 21, 1997. Ten people gave oral presentations at the hearing. Additionally, we received a request from the Bureau of Reclamation (BOR) to reopen the comment period in 1998. In response to that request, we reopened the comment period on August 19, 1998 (63 FR 44417). The second comment period closed on October 5, 1998.

During the first comment period and its extension, we received 15 oral and written comments. Two people supported the proposed listing, four people had neutral comments, and nine people opposed the proposed listing. During the second comment period, we received six comment letters. Of these six letters, two were from individuals who provided the same comments opposing the listing during the first comment period. We also received two additional letters supporting the proposed listing, and two neutral comment letters. Because multiple respondents offered similar comments, we grouped together those of a similar nature.

Issue 1: Several commenters stated that because the plant is extinct, we should not list Sidalcea keckii. One commenter submitted photocopies of aerial photographs alleged to show that lands in the area had been converted to citrus orchards between 1992 and 1997, as evidence of the species extinction. Another commenter stated that the photocopies of aerial photographs submitted to us do not prove the species is extinct.

Our Response: We reviewed the photocopies of the aerial photographs and conclude that they are not of the specific location where the population of Sidalcea keckii was found. Agricultural conversion of rangelands to citrus orchards was cited in the proposed rule as a threat to S. keckii. Conversion to orchards, if the species were present at the location cited by the commenter, would have extirpated the species at this location. Because the aerial photograph did not depict the area containing the species, we maintain that the habitat for S. keckii at its location southeast of Porterville remains intact, and the species is not extinct.

Issue 2: One commenter stated that the information used in this listing does not justify the potential loss of private property, and that private property owners are being regulated out of the use of their lands by the Act. Another commenter stated that we assert that any use of the land by humans would put Sidalcea keckii in jeopardy. One commenter stated that our listing of Sidalcea keckii will have negative effects on the people of Tulare County and the entire Central Valley. Another commenter asked what economic impacts to the Central Valley had been considered. One commenter stated that no evidentiary standard or burden of proof for critical habitat or listing the species is found in the proposed rule.

Our Response: Section 4 (b)(10)(A) of the Act requires that listing be based solely on the best scientific and commercial data available (see “Summary of Factors Affecting the Species” section of this final rule.) We are precluded from assessing the potential effects to private property that may occur as a result of listing as part of the listing process. The legislative history of this provision explains the intent of Congress to “ensure” that listing decisions are “based solely on biological criteria and to prevent non-biological considerations from affecting such decisions' (H.R. Rep. No. 97-835, 97th Cong. 2d Sess. 19(1982)). As further stated in the legislative history, “Applying economic criteria to any phase of the species listing process is applying economics to the determinations made under section 4 of the Act and is specifically rejected by the inclusion of the word “solely” in this legislation” (H.R. Rep. No. 97-835, 97th Cong. 2d Sess. 19(1982)). Because we are precluded from considering economic impacts in a final listing decision, we cannot examine such potential impacts.

Agricultural land conversion, urbanization, and random events threaten Sidalcea keckii. We believe that many activities on private land will not violate section 9 of the Act. Such activities may include livestock grazing, construction or maintenance of livestock fences, clearing a defensible space for fire protection around one's personal residence, and landscaping one's personal residence (see “Available Conservation Measures” section of this final rule.) Not all uses of the land will put the species in jeopardy.

Issue 3: One commenter stated that we lack jurisdiction to enact the proposed rule, and that the rule should be withdrawn because there is no connection between regulation of these plants (located in California) and a substantial effect on “interstate commerce.”

Our Response: The Federal Government has the authority under the Commerce Clause of the U.S. Constitution to protect this species. The Court of Appeals, in National Association of Home Builders of the U.S. v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997). cert. denied, 118 S.Ct. 2340 (1998), held that application of the Act's prohibitions against taking of endangered species was a proper exercise of Commerce Clause power. That case involved a challenge to application of the Act's prohibitions to protect the listed Delhi Sands flower-loving fly ( Rhaphiomidas terminatus abdominalis ). As with Sidalcea keckii, the Delhi Sands flower-loving fly is endemic to only one State.

The Federal Government also has the authority under the Property Clause of the Constitution to protect this species. Sidalcea keckii occurs on Federal land, and the courts have long recognized Federal authority under the Property Clause to protect Federal resources in such circumstances. See Kleppe v. New Mexico, 429 U.S. 873 (1976).

Issue 4: One commenter stated that we had over-emphasized the possibility of future Federal involvement on properties where Sidalcea keckii may occur, because the species did not occur in the BOR's Friant service area.

Our Response: The location of one population of Sidalcea keckii in Tulare County is close enough to BOR's Friant service area that it may be affected by actions relating to BOR's water programs in the area. Although the Friant service area may or may not be expanded to include the area that contains the occurrence of S. keckii in Tulare County (CH2M Hill 1997), we consider both the occurrence in Fresno County and the location of the occurrence of S. keckii in Tulare County to be included in, and directly or indirectly affected by, our Central Valley Project Conservation Program and the cooperative Service and BOR San Joaquin Valley Ecological Services Restoration Program. Although we will include federally listed species like S. keckii in our conservation programs, such inclusion does not mean that we anticipate any direct effects that would necessitate section 7 formal consultation with the BOR.

We solicited the expert opinions of three appropriate and independent specialists in accordance with our Interagency Cooperative Policy for peer review, published on July 1, 1994 (59 FR 34270). We requested they review the proposed rule and provide comments on the pertinent scientific or commercial data and assumptions relating to the taxonomy, population status, and supportive biological and ecological information for the proposed plant. The purpose of such review is to ensure listing decisions are based upon scientifically sound data, assumptions, and analyses, including input of appropriate experts and specialists.

We received two responses from the independent specialists whose opinions were solicited. The first reviewer stated that Sidalcea keckii is very closely related and very similar to S. diploscypha. Although the first reviewer related that the scarcity of knowledge and collections of the species make the quality of its distinctiveness from other taxa difficult, the reviewer stated that S. keckii should be listed as federally endangered. Additionally, the reviewer indicated that the soil seed bank where the species had been known to occur or currently occurs needs to be protected so that it may grow in favorable years.

The second reviewer found the information in the proposed rule to be accurate and the listing action warranted, given our current knowledge of the taxon and documented threats. However, the second reviewer related that two collections of S. diploscypha from Napa County seemed to be very close, if not identical, to S. keckii. Such a disjunct range extension and morphological similarity to S. diploscypha may present taxonomic and range issues that need to be carefully sorted out. The second reviewer stated that until such issues are resolved, S. keckii must be afforded protection provided by listing under the Act.

Section 4 of the Act and regulations (50 CFR part 424) promulgated to implement the listing provisions of the Act set forth the procedures for adding species to the Federal List of Endangered and Threatened Wildlife. A species may be determined to be endangered or threatened due to one or more of the five factors described in section 4(a)(1). These factors and their application to Sidalcea keckii Wiggins (Keck's checker-mallow) are as follows:

A. The present or threatened destruction, modification, or curtailment of its habitat or range. One extant population of S. keckii, of approximately 60 individuals in Tulare County, was discovered in 1992 (J. Stebbins, in litt. 1994). Since 1992, the landowner has not granted us permission to enter the property and check the status of the population. Another population of S. keckii in Fresno County was found in 1998. Only three historical sites for Sidalcea keckii have been reported. The species is presumed extirpated at all three sites because, despite repeated searches for the species, it has not been found at any of these sites since 1939 (J. Stebbins, in litt. 1994). A report of an occurrence near Porterville, Tulare County, is a misidentification of either S. calycosa or S. hirsuta, and is not S. keckii (J. Stebbins, in litt. 1994).

The habitat of the Fresno County population of Sidalcea keckii has no known threats, except for random, naturally occurring events such as fire. The habitat of the Tulare County population has been degraded, and continues to be threatened, by urban development, agricultural land conversion, and grazing (J. Stebbins, in litt. 1994). As recently as 1992, a subdivision was proposed for the private land containing the Tulare County population of S. keckii, although that proposal has since been withdrawn (Marge Neufeld, Tulare County Planning Department, in litt. 1995). Agricultural land conversion also threatens this population (California Natural Diversity Data Base (CNDDB)1997). Citrus orchards occur within 1.6 km (1 mi) of this population of S. keckii. The population is at the same elevation as existing orchards, and has soils similar to those on which citrus is grown. Between 1992 and 1997, rangelands were converted into citrus orchards on a parcel adjacent to the western boundary of the occurrence of S. keckii (Ken Fuller, Service, pers. obs. 1999).

The land on which the population is found changed ownership in 1993 and is currently used for grazing. Although the current level of grazing on the parcel is not thought to pose a threat to the species, an increase in grazing intensity could potentially threaten the species. The current zoning of this 64-ha (160 ac) property is Planned Development Foothill Mobile Home (Roberto Brady, Tulare County Planning Department, pers. comm. 1997). This designation means that, subject to site plan review, the current or any future landowner could place a subdivision, business, or mixed business and residential development on the land. The lands adjacent to this property, which are owned by the same landowner, are zoned to permit citrus, grapes, or other crop agriculture, or cattle grazing (R. Brady, pers. comm. 1997). A zoning variance could permit either residential or agricultural use of the parcel on which the plant occurs. The intentions of the current landowner are unknown.

B. Overutilization for commercial, recreational, scientific, or educational purposes. Overutilization is not currently known to be a factor for the plant. However, Sidalcea keckii is an attractive, showy plant, and the genus is prized as a source of horticultural plants. Simply listing a species can precipitate commercial or scientific interest, both legal and illegal, which can threaten the species through unauthorized and uncontrolled collection. Unrestricted collecting for scientific or horticultural purposes, and impacts from excessive visits by individuals interested in seeing rare plants could result in a reduction of plant numbers and seed production. The two known populations of the species are so small that even limited collecting pressure could have significant impacts.

C. Disease or predation. At this time, disease is not known to pose any problems for Sidalcea keckii.

Moderate to light livestock grazing occurs at the Tulare County population location. S. keckii is not believed to be selectively grazed. However, if the intensity of grazing increases at this site, the species may be subject to increased grazing pressure and trampling of plants. The timing and intensity of grazing are important factors in the effect of grazing on the plant. Livestock grazing during spring and summer likely causes the most damage to the species. When herbivores eat the flower or seed head of the plant, the reproductive output for the year for that individual is destroyed.

D. The inadequacy of existing regulatory mechanisms. The California Environmental Quality Act (CEQA) requires full disclosure of the potential environmental impacts of proposed projects. The public agency with primary authority or jurisdiction over the project is designated as the lead agency and is responsible for conducting a review of the project and consulting with the other agencies concerned with the resources affected by the project. Section 15065 of the CEQA Guidelines requires a finding of significance if a project has the potential to “reduce the number or restrict the range of an endangered, rare, or threatened species.” Species that are eligible for listing as rare, threatened, or endangered but are not so listed are given the same protection as those species that are officially listed with the Federal or State governments. Once significant effects are identified, the lead agency has the option to require mitigation for effects through changes in the project or to decide that overriding considerations make mitigation infeasible. In the latter case, projects may be approved that cause significant environmental damage. Protection of unlisted, proposed, and listed species through CEQA is, therefore, dependent upon the discretion of the lead agency.

Sidalcea keckii is not listed by the California Department of Fish and Game under the California Endangered Species Act (CESA) (Chapter 1.5 sec. 2050 et seq. of the California Fish and Game Code and Title 14 California Code of Regulations section 670.2).

E. Other natural or manmade factors affecting its continued existence. Sidalcea keckii is extremely localized, with only one small population of approximately 60 individuals and another population with 216 individual plants (CNDDB 1997; S. Carter, in litt. 1998). Small population size increases the susceptibility of a population to extirpation from random demographic, environmental, and/or genetic events, affecting survival and reproduction of individuals (Shaffer 1981, 1987; Lande 1988; Meffe and Carroll 1994). Environmental events that may put small populations at risk include random or unpredictable fluctuations in the physical environment, such as changes in the weather (Shaffer 1981, 1987; Lande 1988; Meffe and Carroll 1994). The small population of Sidalcea keckii may also be subject to increased genetic drift (random fluctuation in gene frequencies) and inbreeding (mating by relatives more frequently than would be expected by chance) as a consequence of its small population size (Menges 1991; Ellstrand and Elam 1993). Decreased genetic variation resulting from genetic drift and inbreeding may lead to a loss of fitness (ability of individuals to survive and reproduce). Reduced genetic variation in small populations may make the species less able to successfully adapt to future environmental changes (Ellstrand and Elam 1993). In addition, the combination of two small populations, small range, and restricted habitat makes S. keckii highly susceptible to extinction or extirpation from a significant portion of its range due to random events such as flood, fire, disease, drought, or other occurrences (Shaffer 1981, 1987; Primack 1993; Meffe and Carroll 1994). Such events are not usually a concern until the number of populations or geographic distribution become severely limited, as is the case with S. keckii.

Fire is a natural part of the ecosystem where the populations occur but because the species is so reduced in range, may adversely affect the species, depending on the time of year it occurs. A fire occurred in the area of the Tulare County population of S. keckii in the summer of 1996 or 1997. The fire started near the two-lane road that borders the southern side of the property. The fire burned about 162 ha (400 ac) before being put out. It is uncertain but unlikely that the population of S. keckii was damaged by the fire because the species typically blooms in April and May with seed-set soon after flowering, and the fire occurred later in the summer. We have not been granted permission to enter the property and check the status of the population since 1992. If a fire should occur before the plants bloomed or as they were blooming, the fire could destroy the individual plants as well as deplete the seed bank.

We have carefully assessed the best scientific and commercial information available regarding the present and future threats faced by this species in developing this final rule. Only two populations of Sidalcea keckii are known to exist, and total only about 276 individual plants. The Tulare County population of S. keckii is threatened by urban development, agricultural land conversion, and grazing. Both the Tulare and Fresno County populations are threatened by naturally occurring random events. Although we are not aware of any current proposal for either development or conversion of the parcel on which the two small populations occur, the Tulare County population occurs in an area that is zoned for development or agriculture and is currently unprotected from these threats. Sidalcea keckii is in danger of extinction throughout its range 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 S. keckii, the preferred action is to list this plant as endangered.

Critical habitat is defined in section 3 of the Act as: (i) 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 (I) Essential to the conservation of the species and (II) That may require special management considerations or protection and; (ii) Specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. “Conservation” means the use of all methods and procedures needed to bring the species to the point at which listing under the Act is no longer necessary. Our regulations (50 CFR 424.12(a)(1)) state that 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.

In the proposed rule, we indicated that designation of critical habitat was not prudent for Sidalcea keckii (Keck's checkermallow) because of a concern that publication of precise maps and descriptions of critical habitat in the Federal Register could increase the vulnerability of these species to incidents of collection and/or vandalism. We also indicated that designation of critical habitat was not prudent because we believed the limited benefit provided by designation was outweighed by the increase in threats from collection and/or vandalism.

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 have reexamined the question of whether critical habitat for Sidalcea keckii (Keck's checkermallow) would be prudent.

Due to the small number of populations, Sidalcea keckii (Keck's checkermallow) is vulnerable to unrestricted collection, vandalism, or other disturbance. We remain concerned that these threats might be exacerbated by the publication of critical habitat maps and further dissemination of locational information. However, we have examined the evidence available for Sidalcea keckii (Keck's checkermallow) and have not found specific evidence 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 result from critical habitat designation, then a prudent finding is warranted. In the case of this species, 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, in some instances section 7 consultation might 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 provide some educational or informational benefits. Therefore, we find that designation of critical habitat is prudent for Sidalcea keckii (Keck's checkermallow).

The Final Listing Priority Guidance for FY 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 2000 as conservation efforts demand and in light of resource constraints. 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. Deferral of the critical habitat designation for Sidalcea keckii (Keck's checkermallow) 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 Sidalcea keckii (Keck's checkermallow) without further delay.

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 develop a proposal to designate critical habitat for the Sidalcea keckii (Keck's checkermallow) 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 encourages and results in public awareness and conservation actions by Federal, State, and private organizations, groups, and individuals. Without the elevated profile that Federal listing affords, little likelihood exists that any conservation activities would be undertaken. The Act provides for possible land acquisition and cooperation with the State and requires that recovery actions be carried out for all listed species. The protection required of Federal agencies and the prohibitions against certain activities involving listed plants are discussed, in part, below.

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

Listing Sidalcea keckii will provide for development of a recovery plan for the plant. Such a plan would bring together both State and Federal efforts for conservation of the plant. The plan would establish a framework for agencies to coordinate activities and cooperate with each other in conservation efforts. The plan would set recovery priorities, assign responsibilities, and estimate costs of various tasks necessary to accomplish them. It would also describe site-specific management actions necessary to achieve conservation and survival of the plant. Additionally, pursuant to section 6 of the Act, we would be able to grant funds to California, the affected State, for management actions promoting the protection and recovery of the species.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered plants. All prohibitions of section 9(a)(2) of the Act, implemented by 50 CFR 17.61 for endangered plants, apply. These prohibitions, in part, make it illegal for any person subject to the jurisdiction of the United States to import or export, transport or ship in interstate or foreign commerce in the course of a commercial activity, sell or offer for sale in interstate or foreign commerce, or remove and reduce the species to possession from areas under Federal jurisdiction. In addition, for plants listed as endangered, the Act prohibits the malicious damage or destruction to areas under Federal jurisdiction and the removal, cutting, digging up, or damaging or destroying of such plants in knowing violation of any State law or regulation, including State criminal trespass law. Certain exceptions apply to our agents and State conservation agencies.

It is our policy, published in the Federal Register on July 1, 1994, (59 FR 34272) to identify, to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effects of the listing on proposed and ongoing activities within the species' range. The species is known to occur on private and Federal lands. Collection, damage, or destruction of this species on Federal land is prohibited, although in appropriate cases, a Federal endangered species permit may be issued for scientific or recovery purposes. Such activities on non-Federal lands would constitute a violation of section 9 when conducted in knowing violation of California State law or regulations or in violation of State criminal trespass law.

Activities that are not likely to violate section 9 include livestock grazing at current intensitities, construction or maintenance of fences and livestock water facilities, clearing a defensible space for fire protection around one's personal residence, and landscaping (including irrigation) around one's personal residence. Questions regarding whether specific activities will constitute a violation of section 9 should be directed to the Field Supervisor of the Sacramento Fish and Wildlife office (see ADDRESSES section).

The Act and 50 CFR 17.62 and 17.63 also provide for the issuance of permits to carry out otherwise prohibited activities involving endangered plant species under certain circumstances. Such permits are available for scientific purposes and to enhance the propagation or survival of the species. Requests for copies of the regulations on listed plants, and general inquiries regarding prohibitions and permits may be addressed to the U.S. Fish and Wildlife Service, Ecological Services, Division of Recovery Planning and Permits, 911 NE 11th Ave., Portland, Oregon 97232-4181 (telephone 503/231-2063).

We have determined that an Environmental Assessment or Environmental Impact Statement, 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. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

This rule does not contain any information collection requirements for which the Office of Management and Budget (OMB) approval under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ) is required. An information collection related to the rule pertaining to permits for endangered and threatened species has OMB approval and is assigned the clearance number 1018-0094. For additional information concerning permits and associated requirements for endangered and threatened species, see 50 CFR 17.32.

The primary author of this proposed rule is Ken Fuller, U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office (see ADDRESSES section).

During the past 3 years, NMFS has published final listing determinations for numerous ESUs of salmon and steelhead throughout the Pacific Northwest and California. Although critical habitat has been designated for several of these ESUs, final designations are still pending for 19 ESUs of five species: (1) Puget Sound, Lower Columbia River, Upper Willamette River, Upper Columbia River spring-run, California Central Valley spring-run, and California Coastal chinook salmon ESUs (63 FR 11482, March 9, 1998); (2) Hood Canal summer-run and Columbia River chum salmon ESUs (63 FR 11774, March 10, 1998); (3) Ozette Lake sockeye salmon ESU (63 FR 11750, March 10, 1998); (4) Oregon Coast coho salmon ESU (64 FR 24998, May 10, 1999); and (5) Southern California, South-Central California coast, Central California coast, California Central Valley, Upper Columbia River, Snake River Basin, Lower Columbia River, Upper Willamette River, and Middle Columbia River steelhead ESUs (64 FR 5740, February 5, 1999).

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. At the time of final listing for each of these 19 ESUs, critical habitat was not determinable because the information to perform the required analyses was insufficient. However, NMFS has published proposed rules designating critical habitat for these ESUs, solicited public comments, and held public hearings on the proposals. This final rule considers the new information and comments received in response to the proposed rules for all 19 ESUs.

Use of the term “essential habitat” within this document refers to critical habitat as defined by the ESA and should not be confused with the requirement to describe and identify Essential Fish Habitat (EFH) pursuant to the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq .

Critical habitat is defined in section 3(5)(A) of the ESA as “(i) the specific areas within the geographical area occupied by the species...on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species * * * upon a determination by the Secretary [of Commerce (Secretary)] that such areas are essential for the conservation of the species.” The term “conservation,” as defined in section 3(3) of the ESA, means “ * * * to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary” (see U.S.C. 1532(3)).

In designating critical habitat, NMFS considers the following requirements of the species: (1) Space for individual and population growth, and for normal behavior; (2) food, water, air, light, minerals, or other nutritional or physiological requirements; (3) cover or shelter; (4) sites for breeding, reproduction, or rearing of offspring; and, generally, (5) habitats that are protected from disturbance or are representative of the historical geographical and ecological distributions of the species (see 50 CFR 424.12(b)). In addition to these factors, NMFS also focuses on the known physical and biological features (primary constituent elements) within the designated area that are essential to the conservation of the species and that may require special management considerations or protection. These essential features may include, but are not limited to, spawning sites, food resources, water quality and quantity, and riparian vegetation.

A designation of critical habitat provides Federal agencies with a clear indication as to when consultation under section 7 of the ESA is required, particularly in cases where the proposed action would not result in immediate mortality, injury, or harm to individuals of a listed species ( e.g., an action occurring within the critical habitat area when a migratory species is not present). The critical habitat designation, in describing the essential features of the habitat, also helps determine which activities conducted outside the designated area are subject to section 7 ( i.e., activities outside critical habitat that may affect essential features of the designated area).

A critical habitat designation will also assist Federal agencies in planning future actions because the designation establishes, in advance, those habitats that will be given special consideration in section 7 consultations. With a designation of critical habitat, potential conflicts between Federal actions and endangered or threatened species can be identified and possibly avoided early in an agency's planning process.

Between April 1998 and June 1999, NMFS held 40 public hearings on the critical habitat proposals: 9 in Washington, 15 in Oregon, 4 in Idaho, and 12 in California (63 FR 16955, April 7, 1998; 63 FR 30455, June 4, 1998; 64 FR 20248, April 26, 1999; 64 FR 24998, May 10, 1999). Approximately 800 written comments were submitted in response to the proposed rules and numerous individuals provided oral testimony at the public hearings. New information and comments received are summarized as follows.

Comment 1 : Some commenters felt that the process for proposing critical habitat was not handled well ( e.g., difficulties with public notice and time to respond) and that the proposal itself was too ill-defined to be fully evaluated.

Response : NMFS made every attempt to communicate the critical habitat proposal to the affected communities. As noted above, 40 public hearings were held in California, Washington, Oregon, and Idaho and various local newspapers were notified of the proposed action, comment deadlines, and public meetings. In response to numerous requests, NMFS twice extended the comment periods (63 FR 30455, June 4, 1998; 64 FR 20248, April 26, 1999) to allow additional time for the public to submit comments. Finally, NMFS responded to several requests for supplemental meetings with affected county and local groups to promote better understanding of the proposal and attempt to allay unwarranted fears resulting from misleading information. Any and all parties are encouraged to contact NMFS if they have questions or need additional information regarding this final rule (see FOR FURTHER INFORMATION CONTACT ).

Comment 2 : Numerous commenters believed that NMFS improperly minimized the proposal's economic impacts by separating the designation of critical habitat from the listing process ( i.e., by considering only the incremental economic effects of designating critical habitat, beyond the effects associated with listing the species). These commenters are concerned that by separating the costs associated with the various administrative actions ( e.g., listing, critical habitat designation, section 7 consultations), NMFS underestimated the real economic consequences of protecting listed salmon and steelhead. Some commenters countered that any economic costs would be offset once the salmon and steelhead fisheries were restored. Many commenters objected to NMFS' interpretation that the impact of critical habitat designation is subsumed by the costs associated with protections under section 7 of the ESA. Several commenters contended that NMFS failed to conduct an analysis pursuant to the Regulatory Flexibility Act.

Response : NMFS disagrees with the assertion that it has improperly minimized the economic impacts by separating the designation of critical habitat from the listing process, or that this incremental approach for critical habitat designation renders sections of the ESA meaningless. Rather, the ESA is unambiguous in how it addresses economic impacts; it prohibits the consideration of economic impacts in the listing process, but requires analysis of economic impacts when designating critical habitat. These separate requirements for each determination necessarily engender an incremental analysis in which only the economic impacts resulting from the designation of critical habitat are considered.

Since NMFS is designating the current range of the listed species as critical habitat, this designation will not impose any additional requirements or economic effects beyond those which already accrue from section 7 of the ESA, which is triggered by the species' listing. Section 7 requires Federal agencies to ensure that any action they carry out, authorize, or fund is not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of habitat determined to be critical. The consultation requirements of section 7 are nondiscretionary and are effective at the time of species' listing. Therefore, Federal agencies must consult with NMFS and ensure their actions do not jeopardize a listed species regardless of whether critical habitat is designated.

Most of the effect on non-Federal interests will result from the protective regulations of 4(d) and the no-jeopardy requirement of section 7, both of which are a function of listing a species, not designating its critical habitat. Whether or not critical habitat is designated, non-Federal interests must conduct their actions in a manner consistent with the requirements of the ESA. When a species is listed, non-Federal interests must comply with the prohibitions on takings found in section 9 of the ESA and associated regulations under section 4(d). If the activity is funded, permitted, or authorized by a Federal agency, that agency must comply with the non-jeopardy mandate of section 7 of the ESA, which results from listing a species, not from designating its critical habitat. Once critical habitat is designated, the agency must avoid actions that destroy or adversely modify that critical habitat. However, pursuant to NMFS' ESA implementing regulations, any action that destroys or adversely modifies critical habitat is also likely to jeopardize the continued existence of the species (See the definitions in 50 CFR 402.02). Therefore, NMFS does not anticipate that the designation will result in significant additional requirements for non-Federal interests.

Notwithstanding its lack of economic impact, the designation of critical habitat remains important because it identifies habitat that is essential for the continued existence of a species and, therefore, indicates habitat that may require special management attention. This facilitates and enhances Federal agencies' ability to comply with section 7 by ensuring that agencies are aware of it when their activities may affect listed species and habitats essential to support them. In addition to aiding Federal agencies in determining when consultations are required pursuant to section 7(a)(2), critical habitat can aid an agency in fulfilling its broader obligation under section 7(a)(1) to use its authority to carry out programs for the conservation of listed species.

The Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule would not have a significant economic impact on a substantial number of small entities, as provided in the Regulatory Flexibility Act.

Comment 3 : A number of commenters were under the impression that critical habitat is equivalent to a “set-aside” or an easement and that by its nature is tantamount to an illegal and unconstitutional “taking” of private property. Some commenters felt that designating critical habitat abrogated Executive Order 12630 and the June 30, 1988, Attorney General's “Guidelines for Evaluation and Risk Avoidance of Unanticipated Takings.” Some of these commenters provided estimates and analyses describing specific costs they believed they would incur as a result of the proposed critical habitat designation. These commenters suggested that they should be monetarily reimbursed for any financial hardship resulting from a designation of critical habitat.

Response : A critical habitat designation does not impose any additional burdens on private land than those imposed by the species' listing. A private landowner continues to be free to manage his property as he sees fit, using care that his land management does not result in the take of a listed species. The critical habitat designation simply clarifies the geographic areas within which one's activities may impact listed salmon and steelhead. A critical habitat designation affects private land only when a Federal action ( e.g., obtaining a Federal permit) triggers a section 7 consultation.

Land use activities may be affected by statutory and regulatory protections afforded species once they are listed under the ESA. Section 9(a) of the ESA specifically prohibits the take of endangered species, and NMFS has proposed to adopt similar regulations for threatened steelhead (64 FR 73479, December 30, 1999) and chinook, chum, coho, and sockeye salmon (65 FR 170, January 3, 2000). These prohibitions, which include actions that significantly modify or degrade habitat, may have some impact on land uses that can be shown to have harmed anadromous salmonids ( e.g., placing barriers to migration in a stream), but these regulations should not be confused with the designation of critical habitat. In the course of deciding to make this final designation, the Department of Commerce has complied with Executive Order 12630, Government Actions and Interference with Constitutionally Protected Property Rights.

Comment 4 : Some commenters believed that NMFS should prepare an environmental impact statement pursuant to NEPA on the critical habitat designations because the designations are a major Federal action and will have a significant impact on the environment.

Response : Under section 4(b)(2) of the ESA, the Secretary is required to designate critical habitat on the basis of the best scientific data available after taking into account the economic and other relevant impacts of specifying any particular area as critical habitat. In past critical habitat designations, NMFS has performed analyses of the kind requested here: environmental analysis under the NEPA. In all such cases NMFS has determined that mere designation of critical habitat has no adverse environmental impacts. In the time since these analyses were performed, it has become NMFS' policy, as well as that of the U.S. Fish and Wildlife Service, that designating critical habitat has in fact no impact that requires a NEPA analysis. The Services determined that any appreciable environmental impact resulting from ESA activities accrued not from designating critical habitat, but from listing the species in the first place. Thus, designating critical habitat is simply an adjunct to listing species as threatened or endangered; it is, in itself, merely another effect generated by the listing process and has little or no environmental impact.

The Ninth Circuit Court of Appeals has upheld the Services' determination. In Douglas County v. Babbitt ( see 48 F.3d 1495 (9th Cir. 1995), cert. denied, 116 S.Ct. 698 (1996)), the Court found that Congress, in enacting the ESA, intended that critical habitat procedures displace NEPA requirements. Further, the Court found that NEPA “does not apply to actions that do not change the physical environment” and that “to apply NEPA to the * * * ESA would further the purposes of neither statute.” In other words, the court found that NEPA does not apply to designation of critical habitat under the ESA.

The majority of commenters raised issues regarding the geographic scope and extent of proposed critical habitat, in particular the designation of adjacent riparian zones and the exclusion of historical habitats above dams and marine areas in the Pacific Ocean. Critical habitat is defined in section 3(5)(A) of the ESA as the specific areas within the geographic area occupied by the species on which are found those physical or biological features that are essential to the conservation of the species and that may require special management considerations or protection. Based on commenters' concerns and on new information received during the public comment period, NMFS has refined its designation of critical habitat for all 19 ESUs of salmon and steelhead. The following sections, partitioned by habitat type, address commenters' concerns and clarify NMFS' designation of critical habitat for these ESUs.

Comment 5 : Numerous commenters felt that a more complete scientific analysis was required before critical habitat could be designated and, as a result, requested that the agency withdraw the proposed rules. Some commenters questioned NMFS' delineation of critical habitat as including all areas currently accessible to the species, and requested more specificity as to which stream reaches are critical habitat. Some commenters sought designation of unoccupied streams as critical habitat, while others noted that some local creeks and streams never had salmon or steelhead ( e.g., Calleguas Creek) and requested designation of only those areas where species restoration is feasible. Several commenters believed that adverse hydrologic conditions and degraded habitat in certain streams (e.g., Stone Corral Creek and Upper Elder Creek in California's Central Valley, and Pony Creek in coastal Oregon) would preclude certain basins or river reaches from playing a critical role in the species' recovery. Several commenters noted errors in the tables used to identify river basins containing critical habitat in the proposed rules (e.g., in the California coastal chinook salmon ESU). Several commenters identified streams and estuarine areas that they believed should be included or highlighted due to their significance for salmon and steelhead production. Finally, a large number of commenters requested that NMFS extend the southern extent of the critical habitat designation from Malibu Creek to at least San Mateo Creek in San Diego County in conjunction with a range extension of the Southern California steelhead ESU.

Response : While the proposed rules described the lack of consistent and robust data sets with which to discern the species' distribution at a fine scale, NMFS believes that the best available distribution information is sufficient to characterize basin-level designations of critical habitat for the listed species. A variety of mapping efforts are underway throughout the Pacific Northwest and California ( e.g., the “core area” mapping component of the Oregon Coastal Salmon Restoration Initiative (OCSRI 1997), since renamed “The Oregon Plan for Salmon and Watersheds”). However, most have yet to be completed or fail to depict salmonid habitats in a consistent manner or at a fine geographic scale. Hence, they must be viewed as good but tentative descriptions of areas occupied by or critical for salmon and steelhead. NMFS believes that these mapping efforts hold great promise for focusing habitat protection and restoration efforts and will continue to use the expertise of state and tribal comanagers to discern salmonid distribution when specific actions warrant (e.g., during section 7 consultations). However, the limited data across the range of these 19 ESUs, as well as dissimilarities in data types within them, continue to make it difficult to define this species' distribution at a finer scale than the U.S. Geological Survey (USGS) hydrologic units ( i.e., basins) identified Tables 7-24. Similarly, this limitation precludes the agency from restricting critical habitat to streams where restoration may or may not be feasible.

The agency's preferred approach to identifying critical habitat is to designate all areas accessible to the species within the range of hydrologic units in each ESU. While this may not provide the level of resolution to define the species' presence or absence in specific local creeks and streams, NMFS believes that adopting a more inclusive, watershed-based description of critical habitat is appropriate because it: (1) Recognizes the species' use of diverse habitats and underscores the need to account for all of the habitat types supporting the species' freshwater and estuarine life stages, from small headwater streams to migration corridors and estuarine rearing areas; (2) takes into account the natural variability in habitat use that makes precise mapping problematic ( e.g., some streams may have fish present only in years with abundant rainfall); and (3) reinforces the important linkage between aquatic areas and adjacent riparian/upland areas. While unoccupied streams are excluded from critical habitat, habitat quality in the species' current range is intrinsically related to the quality of upland areas and of inaccessible headwater or intermittent streams which provide key habitat elements ( e.g., large woody debris, gravel, water quality) crucial for fish in downstream reaches.

NMFS clarifies that reaches or basins historically and currently unoccupied ( e.g., Calleguas Creek, Ventura County, California) would not be considered critical habitat. Also, the agency acknowledges that some streams currently have little suitable habitat for salmon and steelhead or are rarely inhabited by the species. As noted previously, the paucity of detailed information regarding salmonid distribution precludes NMFS from identifying specific drainages or river reaches occupied by the species. In addition, the current low abundance of the species makes it difficult to rule out any stream for recovery since the remnant populations may need whatever habitat is available in order to persist. In the case of some streams cited by commenters it is unclear whether the basin has been monitored sufficiently such that firm conclusions about the species' presence/absence can be made. Instead, NMFS believes that the most prudent approach to characterizing critical habitat is to include all areas accessible to listed salmon and steelhead. In streams where there is limited species distribution information, NMFS biologists would make their best professional judgment about the access to and suitability of available habitat and what if any impacts would occur to the listed fish as a result of a specific activity. Few if any effects would result from an activity where it is well documented that the listed species makes little use of a river reach or basin and the existing habitat conditions are poor.

To address the request by several commenters, NMFS has provided a more complete list of rivers, bays, and estuaries known to support salmon and steelhead in each ESU (see section Critical Habitat of Salmon and Steelhead; Changes to the Proposed Rules). NMFS has also corrected several errors contained in the tables used to identify river basins and estuarine areas containing critical habitat and errors in the regulatory definitions. Changes included correcting misidentified basins and dams, deleting reference to several dams that are beyond the upstream extent of salmonid access, and including habitats currently occupied but erroneously omitted in the proposed rule ( e.g., the inadvertent exclusion of south San Francisco Bay as critical habitat for Central California Coast steelhead ESU). See also comments and corrections noted under Dams and Barriers.

It is important to note that recent listing determinations have changed the geographic boundaries of several chinook salmon, chum salmon, and steelhead ESUs. These changes have resulted in modifications to the critical habitat to correspond with the new ESU configurations. As a result, the Upper Willamette River chinook salmon ESU (and its critical habitat) now extends downstream of Willamette Falls to include the areas occupied by Clackamas River spring-run populations (64 FR 14308, March 24, 1999) and the Hood Canal summer-run chum salmon ESU/critical habitat now includes Dungeness Bay and tributaries (64 FR 14508, March 25, 1999). In contrast, the California coastal and Snake River fall-run chinook salmon ESUs (64 FR 50394, September 16, 1999) and Upper Willamette River steelhead ESU (64 FR 14517, March 25, 1999) were listed within a smaller range of watersheds; hence several basins and dams/reservoirs are now being excluded from the critical habitat designation. In the case of the Snake River fall-run chinook salmon ESU, critical habitat will remain in the range of watersheds originally designated on December 28, 1993 (58 FR 68543). Specific changes to the critical habitat designations for all ESUs are summarized in Critical Habitat of Salmon and Steelhead; Changes to the Proposed Rules.

Finally, with respect to the southern extent of critical habitat for the Southern California steelhead ESU, NMFS finds that the comments may have merit. In 1999, juvenile O . mykiss suspected of being steelhead were found in several locations within the San Mateo Creek watershed. NMFS is evaluating the available biological information for these fish, including a limited amount of genetic and otolith microchemistry data, to determine whether a range extension of this ESU is warranted. If warranted by the available data, NMFS will propose a range extension of this ESU in a separate rule making. NMFS would consider the extension of the critical habitat designation south of Malibu Creek in conjunction with that rulemaking.

Comment 6 : While many commenters supported NMFS' proposal to include the adjacent riparian zone as critical habitat, others were strongly against this approach. Some noted the lack of justification for including adjacent riparian zones of 300 feet from each side of a stream in the critical habitat proposals for chinook, chum and sockeye salmon. Moreover, many felt that proposing to designate these zones was arbitrary and excessive. Several commenters offered possible lesser solutions to defining adjacent riparian zones, including: only the actual inhabited stream reaches themselves, a smaller width to the riparian boundary (e.g., equivalent to a site-potential tree height), or the extent of the flood plain.

Response : NMFS agrees that the proposed rules for chinook, chum, and sockeye salmon did not adequately describe the rationale for identifying adjacent riparian zones as part of critical habitat. The subsequent proposed rules for steelhead and Oregon coast coho salmon included greater detail on this topic and moreover proposed a new, refined approach to designating the adjacent riparian zone (summarized below). NMFS believes it is important to include these zones in the designation of critical habitat for several reasons. The ESA defines critical habitat to include areas “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.” These essential features for salmon include, but are not limited to, spawning sites, food resources, water quality and quantity, and riparian vegetation (see 50 CFR 424.12(b)). Riparian areas form the basis of healthy watersheds and affect these primary constituent elements; therefore, they are essential to the conservation of the species and need to be included as critical habitat.

NMFS' past critical habitat designations for listed salmonids have included the adjacent riparian zone as part of the designation. For example, in the final designations for Snake River spring/summer chinook, fall chinook, and sockeye salmon (58 FR 68543, December 28, 1993), NMFS included the adjacent riparian zone as part of critical habitat and defined it in the regulation as those areas within a horizontal distance of 300 feet (91.4 meters) from the normal high water line. In the critical habitat designation for Sacramento River winter-run chinook (58 FR 33212, June 16, 1993), NMFS included “adjacent riparian zones” as part of the critical habitat but did not define the extent of that zone in the regulation. The preamble to that rule stated that the adjacent riparian zone was limited to “those areas that provide cover and shade.”

Streams and stream functioning are inextricably linked to adjacent riparian and upland (or upslope) areas. Streams regularly submerge portions of the riparian zone via floods and channel migration, and portions of the riparian zone may contain off-channel rearing habitats used by juvenile salmonids, especially during periods of high flow. The riparian zone also provides an array of important watershed functions that directly benefit salmonids. Vegetation in the zone shades the stream, stabilizes banks, and provides organic litter and large woody debris. The riparian zone stores sediment, recycles nutrients and chemicals, mediates stream hydraulics, and controls microclimate. Healthy riparian zones help ensure water quality essential to salmonids as well as the forage species they depend on (Reiser and Bjornn, 1979; Meehan, 1991; FEMAT, 1993; and Spence et al ., 1996). Human activities in the adjacent riparian zone, or in upslope areas, can harm stream function and can harm salmonids, both directly and indirectly, by interfering with the watershed functions described here. For example, timber harvest, road-building, grazing, cultivation, and other activities can increase sediment, destabilize banks, reduce organic litter and woody debris, increase water temperatures, simplify stream channels, and increase peak flows leading to scouring. These adverse modifications reduce the value of habitat for salmonids and, in many instances, may result in injury to or mortality of fish. Because human activity may adversely affect these watershed functions and habitat features, NMFS concluded the adjacent riparian zone could require special management consideration, and, therefore, was appropriate for inclusion in critical habitat.

The Snake River salmon critical habitat designation relied on analyses and conclusions reached by the Forest Ecosystem Management Assessment Team (FEMAT, 1993) regarding interim riparian reserves for fish-bearing streams on Federal lands within the range of the northern spotted owl. The interim riparian reserve recommendations in the FEMAT report were based on a systematic review of the available literature, primarily for forested habitats, concerning riparian processes as a function of distance from stream channels. The interim riparian reserves identified in the FEMAT report for fish-bearing streams on Federal forest lands are intended to (1) provide protection to salmonids, as well as riparian-dependent and associated species, through the protection of riparian processes that influence stream function, and (2) provide a high level of fish habitat and riparian protection until site-specific watershed and project analyses can be completed. The FEMAT report identified several alternative ways that interim riparian reserves providing a high level of protection could be defined, including the 300-foot (91.4 meter) slope distance, a distance equivalent to two site-potential tree heights, the outer edges of riparian vegetation, the 100-year flood plain, or the area between the edge of the active stream channel to the top of the inner gorge, whichever is greatest. The U.S. Forest Service (USFS) and U.S. Bureau of Land Management (BLM) ultimately adopted these riparian reserve criteria as part of an Aquatic Conservation Strategy aimed at conserving fish, amphibians, and other aquatic- and riparian- dependent species in the Record of Decision for the Northwest Forest Plan (FEMAT ROD, 1994).

While NMFS has used the findings of the FEMAT report to guide its analyses in ESA section 7 consultations with the USFS and BLM regarding management of Federal lands, NMFS recognizes that the interim riparian reserves may be conservative in some instances, with regard to the protection of adjacent riparian habitat for salmonids since they are designed to protect terrestrial species that are riparian dependent or associated, as well as salmonids. Moreover, NMFS' analyses have focused more on the stream functions important to salmonids and on how proposed activities will affect the riparian area's contribution to properly functioning conditions for salmonid habitat.

Since the adoption of the Northwest Forest Plan, NMFS has gained experience working with Federal and non-Federal landowners to determine the likely effects of proposed land management actions on stream functions. In freshwater and estuarine areas, these activities include, but are not limited to agriculture; forestry; grazing; diking and bank stabilization; construction/urbanization; dam construction/operation; dredging and dredged spoil disposal; habitat restoration projects; irrigation withdrawal, storage, and management; mineral mining; road building and maintenance; sand and gravel mining; wastewater/pollutant discharge; wetland and floodplain alteration; and woody debris/structure removal from rivers and estuaries. NMFS has developed numerous tools to assist Federal agencies in analyzing the likely impacts of their activities on anadromous fish habitat. With these tools, Federal agencies are better able to judge the impacts of their actions on salmonid habitat, taking into account the location and nature of their actions. NMFS' primary tool guiding Federal agencies is a document titled “Making Endangered Species Act Determinations of Effect for Individual or Grouped Actions at the Watershed Scale” (NMFS, 1996a). This document presents guidelines to facilitate and standardize determinations of “effect” under the ESA and includes a matrix for determining the condition of various habitat parameters. This matrix is being implemented throughout northern California and Oregon coastal watersheds and is expected to help guide efforts to define salmonid risk factors and conservation strategies throughout the West Coast.

Several recent literature reviews have addressed the effectiveness of various riparian zone widths for maintaining specific riparian functions ( e.g., sediment control, large woody debris recruitment) and overall watershed processes. These reviews provide additional useful information about riparian processes as a function of distance from stream channels. For example, Castelle et al . (1994) conducted a literature review of riparian zone functions and concluded that riparian widths in the range of 30 meters (98 feet) appear to be the minimum needed to maintain biological elements of streams. They also noted that site-specific conditions may warrant substantially larger or smaller riparian management zones. Similarly, Johnson and Reba (1992) summarized the technical literature and found that available information supported a minimum 30-meter riparian management zone for salmonid protection.

A recent assessment funded by NMFS and several other Federal agencies reviewed the technical basis for various riparian functions as they pertain to salmonid conservation (Spence et al ., 1996). These authors suggest that a functional approach to riparian protection requires a consistent definition of riparian ecosystems based on “zones of influence” for specific riparian processes. They noted that in constrained reaches where the active channel remains relatively stable through time, riparian zones of influences may be defined based on site-potential tree heights and distance from the active channel. In contrast, they note that, in unconstrained reaches ( e.g., streams in broad valley floors) with braided or shifting channels, the riparian zone of influence is more difficult to define, but recommend that it is more appropriate to define the riparian zone based on some measure of the extent of the flood plain.

Spence et al . (1996) reviewed the functions of riparian zones that are essential to the development and maintenance of aquatic habitats favorable to salmonids and the available literature concerning the riparian distances that would protect these functional processes. Many of the studies reviewed indicate that riparian management widths designed to protect one function in particular, recruitment of large woody debris, are likely to be adequate to protect other key riparian functions. The reviewed studies concluded that the vast majority of large woody debris is obtained within one site-potential tree height from the stream channel (Murphy and Koski, 1989; McDade et al ., 1990; Robison and Beschta, 1990; Van Sickle and Gregory, 1990; FEMAT, 1993; and Cederholm, 1994). Based on the available literature, Spence et al . (1996) concluded that fully protected riparian management zones of one site-potential tree would adequately maintain 90 to 100 percent of most key riparian functions of Pacific Northwest forests if the goal was to maintain instream processes over a time frame of years to decades.

Based on experience gained since earlier critical habitat designations and after considering public comments and reviewing additional scientific information regarding riparian habitats, NMFS is re-defining adjacent riparian zones for the 9 chinook, chum and sockeye salmon ESUs to match the riparian function description used for steelhead and Oregon Coast coho salmon ESUs. Specifically, the adjacent riparian area for all 19 salmon and steelhead ESUs is defined as the area adjacent to a stream that provides the following functions: shade, sediment transport, nutrient or chemical regulation, streambank stability, and input of large woody debris or organic matter. Specific guidance on assessing the potential impacts of land use activities on riparian functions can be obtained by consulting with NMFS (see ADDRESSES ), local foresters, conservation officers, fisheries biologists, or county extension agents.

The physical and biological features that create properly functioning salmonid habitat vary throughout the species' range and the extent of the adjacent riparian zone may change accordingly depending on the landscape under consideration. While a site-potential tree height can serve as a reasonable benchmark in some cases, site-specific analyses provide the best means to characterize the adjacent riparian zone because such analyses are more likely to accurately capture the unique attributes of a particular landscape. Knowing what may be a limiting factor to the properly functioning condition of a stream channel on a land use or land type basis and how that may or may not affect the function of the riparian zone will significantly assist Federal agencies in assessing the potential for impacts to listed salmon and steelhead. On Federal lands within the range of the northern spotted owl, Federal agencies should continue to rely on the Aquatic Conservation Strategy of the Northwest Forest Plan to guide their consultations with NMFS. Where there is a Federal action on non-Federal lands, Federal agencies should consider the potential effects of the activities they fund, permit, or authorize on the riparian zone adjacent to a stream that may influence the following functions: shade, sediment delivery to the stream, nutrient or chemical regulation, streambank stability, and the input of large woody debris or organic matter. In areas where the existing riparian zone is seriously diminished ( e.g., in many urban settings and agricultural settings where flood control structures are prevalent), Federal agencies should focus on maintaining any existing riparian functions and restoring others where appropriate, for example, by cooperating with local watershed groups and landowners. NMFS acknowledges in its description of riparian habitat function that different land use types (e.g., timber, urban, and agricultural) will have varying degrees of impact and that activities requiring a Federal permit will be evaluated on the basis of disturbance to the riparian zone. In many cases the evaluation of an activity may focus on a particular limiting factor for a watercourse ( e.g., temperature, stream bank erosion, sediment transport) and whether that activity may or may not contribute to improving or degrading the riparian habitat.

Finally, NMFS emphasizes that a designation of critical habitat does not prohibit landowners from conducting actions that modify streams or the adjacent terrestrial habitat. Critical habitat designation serves to identify important areas and essential features within those areas, thus alerting both Federal and non-Federal entities to the importance of the area for listed salmonids. Federal agencies are required by the ESA to consult with NMFS to ensure that any action they authorize, fund, or carry out is not likely to destroy or adversely modify critical habitat in a way that appreciably diminishes the value of critical habitat for both the survival and recovery of the listed species. The designation of critical habitat will assist Federal agencies in evaluating how their actions on Federal or non-Federal lands may affect listed salmon and steelhead and determining when they should consult with NMFS on the impacts of their actions. When a private landowner requires a Federal permit that may result in the modification of salmonid habitat, Federal permitting agencies will be required to ensure that the permitted action, regardless of whether it occurs in the stream channel, adjacent riparian zone, upstream of an impassible dam, or upland areas, does not appreciably diminish the value of critical habitat for both the survival and recovery of the listed species or jeopardize the species' ( i.e., ESUs) continued existence. For other actions, landowners and agencies should consider the needs of the listed fish and NMFS will assist them in assessing the impacts of actions.

Comment 7 : Numerous commenters, including the Elwha Klallam Tribe requested that NMFS conduct a more detailed analysis of areas above existing dams before concluding that these areas do not constitute critical habitat. Of particular concern were two Elwha River dams in Washington and numerous dams in California's Central Valley and south coast. Many felt that designating areas above dams would assist in recovery planning and dam-relicensing negotiations. Others requested that NMFS identify additional dams as the upstream extent of accessible habitat for salmon and steelhead. Some commenters requested clarification about whether NMFS considers critical habitat above dams that currently have listed fish transported above them ( i.e., via trap and haul programs). The Shoshone-Bannock Tribes requested that NMFS include areas above Napias Creek Falls in the designation for Snake River Basin steelhead.

Response : NMFS' ESA implementing regulations specify that unoccupied areas are not to be included in critical habitat unless the present range would be inadequate to ensure the conservation of the species (50 CFR 424.12(e)). While the blocked areas are significant in certain ESUs or river basins ( e.g., California's Central Valley and southern coast and in Washington's Elwha River Basin), NMFS has not conducted an assessment to determine if all or some of these blocked habitats are currently essential for the recovery of any ESU. In addition, the agency has not performed the requisite economic analyses needed to designate blocked areas (50 CFR 424.12(a)).

The agency's intent in identifying specific dams in each ESU was to clarify the upstream extent of known occupied reaches and to contrast these barriers with smaller, ephemeral barriers (e.g., culverts, push-up dams, etc.) that the agency does not view as impassable structures. NMFS does not intend to “write off” potential habitats above these dams, but instead will fully consider the role of these blocked habitats in the recovery planning process and in ESA habitat conservation plans and section 7 consultations. If future analyses reveal that these areas are essential for the species' conservation or could contribute to an expedited recovery of any listed ESU, NMFS will revise the critical habitat designation and make efforts to gain access to blocked habitats. NMFS will continue to encourage Federal, state and local agencies to consider the needs of listed salmon and steelhead even in areas currently unoccupied but potentially important for future population access, restoration, and recovery.

NMFS has also reviewed information submitted by commenters requesting that a number of dams be added or removed from the list of dams/reservoirs representing the upstream extent of critical habitat (Tables 7-24). In doing so, the agency re-examined the hydrologic unit maps and found a number of errors that have been corrected in the tables. In many cases a particular dam was found to be misidentified, located in the wrong hydrologic unit, or upstream of an impassable barrier. Although several commenters believed that Black Butte Dam was misidentified in the proposed rule, NMFS has verified that this dam does in fact mark the upstream extent of Stony Creek in the Sacramento-Lower Thomes hydrologic unit. In other cases, NMFS found additional dams that block salmon and steelhead passage and has identified them as the upstream extent of critical habitat in the appropriate tables.

The agency also found several cases where dams identified as blockages in the original proposed designation were discovered to have “trap and haul” programs that move listed salmon and steelhead above them. This has resulted in an increase in the occupied range of several listed ESUs, and NMFS has expanded critical habitat to include accessible reaches above such dams. These and other edits are summarized in the section Critical Habitat of Salmon and Steelhead; Changes to the Proposed Rules.

In the case of Napias Creek Falls, NMFS noted in the proposed designation that steelhead do not presently occur in upper Napias Creek and that conclusions regarding the nature of this barrier are difficult. While NMFS believes it is likely steelhead could migrate above the falls at certain streamflows (NMFS, 1998), it is difficult to determine the frequency that steelhead would migrate above the falls or whether steelhead would recolonize habitat areas above the falls. The presence of relict indicator species above the falls ( e.g., rainbow trout) tends to indicate steelhead may have occurred above the falls over evolutionary time periods; however, historical information indicates steelhead have not occurred in this area in recent times. The agency specifically requested comments regarding this and other falls, but has not received information that would bear conclusively on this issue. Therefore, the agency will continue to consider the areas upstream of Napias Creek Falls as outside the range of critical habitat for listed Snake River Basin steelhead. If new information becomes available to indicate otherwise, the agency will make the appropriate modifications to this ESU's critical habitat designation.

Comment 8 : Numerous commenters questioned why NMFS had not designated critical habitat in marine areas. Some commenters provided data supporting the inclusion of estuarine/marine areas for the Hood Canal summer-run chum salmon ESU. Some recommended that NMFS revise its designation based on the recent EFH recommendations which include marine areas over portions of the continental shelf.

Response : In the case of the Hood Canal summer-run chum salmon ESU, NMFS agrees that the evidence supports including marine/estuarine areas in the unique, fjord-like setting of Puget Sound (i.e., in a manner similar to the designation for the Puget Sound chinook salmon ESU). The agency is currently re-evaluating its previous determination to exclude ocean areas as critical habitat for listed salmon and steelhead ESUs, in particular the issue of whether marine areas require special management consideration or protection. NMFS agrees that the rationale supporting the current EFH designation for Pacific salmon should be a key part of this re-evaluation. Regardless of the specific areas designated, it is important to note that Federal agencies are required to ensure that their actions, regardless of whether they occur in freshwater, estuarine, or marine habitats, do not jeopardize the continued existence of a listed species.

Comment 9 : Many commenters challenged the merits of the original listings and felt that the true cause of salmon and steelhead declines lay in various spheres aside from freshwater habitat. Among the various causes cited were: tribal fishing, commercial fishing, sport fishing, foreign fishing, marine mammals, other protected predators, non-native species, birds, hatchery practices, dams, ocean conditions, and recent droughts and floods. Others provided evidence that mismanagement and pollution of freshwater habitats have been principal factors in the species' decline. Still others felt that extinction is a natural process and that little can (or should) be done about it.

Response : NMFS believes that the threatened extinction of numerous salmon and steelhead populations is primarily the result of human, not natural, factors and will continue to encourage all efforts to protect and restore imperiled salmon and their habitat. The agency acknowledges that a multitude of factors have contributed to the decline of west coast salmon and steelhead and has described these factors in more detail in the proposed listing determinations (60 FR 38011, July 25, 1995; 61 FR 41541, August 9, 1996; 63 FR 11482, March 9, 1998; 63 FR 11750, March 10, 1998; 63 FR 11774, March 10, 1998; 63 FR11798, March 10, 1998), in technical status reviews for the coho salmon (Weitkamp et al ., 1995), steelhead (Busby et al ., 1996), sockeye salmon (Gustafson et al ., 1997), chum salmon (Johnson et al ., 1997), and chinook salmon (Myers et a l., 1998), and in documents detailing factors for decline for related species (NMFS 1996b and 1998). Many of the causes cited by commenters are human-controlled and NMFS believes that these can and must be addressed in the near term to improve the salmon's chances for surviving uncontrollable natural events such as droughts, floods, and poor ocean conditions.

Comment 10 : Some commenters requested that NMFS clarify the meaning of “harm” under the ESA.

Response : NMFS interprets the term “harm” in the context of habitat destruction as an act that actually kills or injures fish or wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including breeding, spawning, rearing, migrating, feeding, and sheltering (64 FR 60727, November 8, 1999). The habitat modification or degradation contained in the definition of “harm” is limited to those actions that actually kill or injure listed fish or wildlife. NMFS believes that this definition is reasonable for the conservation of the habitats of listed species and moreover is in keeping with Congress' intent under the ESA.

Section 9 of the ESA makes it illegal to take an endangered species of fish or wildlife. The definition of “take” is to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” (16 U.S.C. 1532(19)). On November 8, 1999, NMFS published a final rule defining the term “harm” (64 FR 60727). The U.S. Fish and Wildlife Service has also promulgated a regulation further defining the term “harm” to eliminate confusion concerning its meaning (50 CFR 17.3). The U.S. Fish and Wildlife Service's definition of “harm” with respect to habitat destruction has been upheld by the Supreme Court as a reasonable interpretation of the term and supported by the broad purpose of the ESA to conserve endangered and threatened species (See Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon , 115 S. Ct. 2407, 2418 (1995)). With the listings of salmon and steelhead, potentially affected parties questioned whether NMFS also interpreted harm to include habitat destruction. The November 8, 1999, final rule clarifies that NMFS' interpretation of harm is consistent with that of the U.S. Fish and Wildlife Service.

Comment 11 : Several commenters took exception to NMFS' assertion that adverse modification of critical habitat is equivalent to jeopardizing the listed species.

Response : NMFS disagrees that the terms “adverse modification” and “jeopardy” are necessarily different. Section 7 of the ESA requires that Federal agencies ensure that their actions are not likely to result in the destruction or adverse modification of critical habitat. This requirement is in addition to the prohibition against jeopardizing the continued existence of a listed species, and it is the only mandatory legal consequence of a critical habitat designation. An understanding of the interplay of the “jeopardy” and “adverse modification” standards is necessary to the proper evaluation of the prudence of designation as well as the conduct of consultation under section 7. Implementing regulations (50 CFR 402.02) define “jeopardize the continued existence of” and “destruction or adverse modification of” in virtually identical terms. “Jeopardize the continued existence of” means “to engage in an action that reasonably would be expected...to reduce appreciably the likelihood of both the survival and recovery of a listed species...” “Destruction or adverse modification” means “an alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species.” Common to both definitions is an appreciable detrimental effect on both survival and recovery of a listed species. Thus, actions satisfying the standard for adverse modification are nearly always found to also jeopardize the species concerned, and the existence of a critical habitat designation does not materially affect the outcome of section 7 consultation. This is in contrast to the public perception that the adverse modification standard sets a lower threshold for violation of section 7 than that for jeopardy. In fact, biological opinions which conclude that a Federal agency action is likely to adversely modify critical habitat but not to jeopardize the species for which it is designated are very rare.

Comment 12 : Several commenters stated that existing management plans and conservation initiatives were sufficient to protect salmon and steelhead and their habitat, and, therefore, the proposed critical habitat designation is not warranted. Some commenters admonished NMFS to engage in local salmon conservation programs and warned that designating critical habitat could dampen these efforts.

Response : The designation of critical habitat relies on evaluating which areas are occupied and essential for the species' conservation (see “Definition of Critical Habitat”). However, NMFS did consider existing regulatory mechanisms and conservation plans applicable to salmon and steelhead and their habitats in the final listing determinations for each species (62 FR 43937, August 18, 1997; 63 FR 13347, March 19, 1998; 63 FR 42587, August 10, 1998; 64 FR 14308, March 24, 1999; 64 FR 14508, March 25, 1999; 64 FR 14517, March 25, 1999; 64 FR 14528, March 25, 1999; 64 FR 50394, September 16, 1999). In those Federal Register documents, a variety of Federal and state laws and programs were found to have affected the abundance and survival of anadromous fish populations in all 19 ESUs. NMFS concluded that available regulatory mechanisms were inadequate and that regulated activities continued to represent a potential threat to the species' existence.

NMFS agrees with commenters that state and local watershed efforts are key to the recovery and long-term survival of these 19 salmon and steelhead ESUs. Species listings and critical habitat designations under the ESA should in no way hamper efforts to help salmonids and other imperiled species in the Pacific Northwest and California. NMFS encourages such efforts, as evidenced by the agency's involvement with an array of programs in the Pacific Northwest and California, including: helping to fund watershed coordinators through the Oregon Governor's Watershed Enhancement Board and assisting with implementation of the Oregon Plan for Salmon and Watersheds; working with numerous Resource Conservation Districts and watershed restoration efforts in the four states; providing technical support for a variety of recovery planning efforts in Puget Sound and the Columbia River Basin; participating in the development of California's recovery and strategic management plans for coastal salmonids and working with the California Governor's Biodiversity Councils; and working with tribal, state, and city/local jurisdictions to develop protective regulations for threatened salmonids. NMFS recognizes the significant benefits that will accrue to salmon and steelhead as a result of these efforts. In fact, NMFS has promulgated interim and proposed protection regulations ( i.e., ESA 4(d) rules) that provide specific limits to the ESA take prohibitions for certain harvest, hatchery, habitat restoration, monitoring, and other state and tribal efforts currently underway in the range of these 19 salmon and steelhead ESUs (62 FR 38479, July 18, 1997; 64 FR 73479, December 30, 1999; 65 FR 170, January 3, 2000). All parties interested in obtaining technical assistance in support of salmon and steelhead conservation (or other information related to NMFS' ESA activities) are encouraged to contact NMFS field office personnel in Washington, Oregon, Idaho, and California (see FOR FURTHER INFORMATION CONTACT ).

Comment 13 : Beginning in 1998, NMFS received comments from various Northwest and California tribes requesting that the agency not designate critical habitat on Indian lands. Many of these tribes noted that this exclusion was warranted due to specific provisions contained in a June 1997 Secretarial Order entitled “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act” (Secretarial Order). Many of these comments focused on the critical habitat proposals for chinook, chum and sockeye salmon (63 FR 11482, March 9, 1998; 63 FR 11750, March 10, 1998; 63 FR 11774, March 10, 1998) which did not address Indian lands ( i.e., proposed to designate Indian lands). However, other comments addressed specific language used to define the exclusion of Indian lands in proposals for steelhead (64 FR 5740, February 5, 1999) and Oregon Coast coho salmon (64 FR 24998, May 10, 1999).

Response : The unique and distinctive relationship between the United States and Indian tribes is defined by treaties, statutes, executive orders, judicial decisions, and agreements, which differentiate tribes from the other entities that deal with, or are affected by, the Federal Government. This relationship has given rise to a special Federal trust responsibility involving the legal responsibilities and obligations of the United States toward Indian tribes and the application of fiduciary standards of due care with respect to Indian lands, tribal trust resources, and the exercise of tribal rights. Pursuant to the treaties, statutes, judicial decisions, executive orders and other agreements that define the relationship between the United States and tribes, lands have been retained by Indian tribes or have been set aside for tribal use. These lands are managed by Indian tribes in accordance with tribal goals and objectives, within the framework of applicable laws.

As a means of recognizing the responsibilities and relationship between the United States and Indian tribes, the Secretaries of Commerce and Interior issued the June 5, 1997 Secretarial Order. The Secretarial Order clarifies the responsibilities of NMFS and the U.S. Fish and Wildlife Service when carrying out authorities under the ESA and requires that they consult with, and seek participation of, the affected Indian tribes to the maximum extent practicable. The Secretarial Order further provides that the Services..."shall consult with the affected Indian tribe(s) when considering the designation of critical habitat in an area that may impact tribal trust resources, tribally owned fee lands, or the exercise of tribal rights. Critical habitat shall not be designated in such areas unless it is determined essential to conserve a listed species.”

Pursuant to the Secretarial Order and in response to written and verbal comments provided by various tribes in Washington, Oregon, Idaho, and California, as well as the Northwest Indian Fisheries Commission, NMFS met and corresponded with many of the affected tribes concerning the inclusion of Indian lands in final critical habitat designations. These discussions resulted in significant clarifications regarding the tribes' general position to exclude their lands, as well as specific issues regarding NMFS' interpretation of Indian lands under the Secretarial Order.

The Secretarial Order defines Indian lands as “any lands title to which is either: (1) Held in trust by the United States for the benefit of any Indian tribe or individual; or (2) held by any Indian tribe or individual subject to restrictions by the United States against alienation.” In clarifying this definition with the tribes, NMFS has asserted that (1) fee lands within the reservation boundaries and owned by non-Indians, and (2) fee lands outside the reservation boundaries and owned by individual Indians, would be designated as critical habitat. The basis for this distinction regarding fee lands is that the tribal governments exercise management authority over fee lands they own (whether on or off the reservation) and over fee lands on the reservation owned by individual Indians. However, it is presently unclear to NMFS what management authority the tribal governments have over non-Indian-owned lands on the reservation or member-owned fee lands off the reservation. Such authority over land management is a crucial factor in the determination to designate them as critical habitat or not.

Based on a consideration of the Federal Government's trust responsibilities to Indian tribes, particularly as addressed in the Secretarial Order (including NMFS' determination that designating such areas are not essential to the conservation of listed steelhead), and out of respect for tribal sovereignty over the management of Indian lands, NMFS has determined that Indian lands should be excluded from the final critical habitat designation for these 19 ESUs of salmon and steelhead. The Indian lands specifically excluded from critical habitat are those defined in the Secretarial Order, including: (1) Fee lands, either within or outside the reservation boundaries, owned by the tribal government; and (2) fee lands, within the reservation boundaries, owned by individual Indians.

Although NMFS continues to believe that habitat on Indian lands which is currently accessible to listed salmon and steelhead is important for the long-term survival and recovery of these species, the agency believes that section 7 consultations through the Bureau of Indian Affairs and other Federal agencies in combination with the continued development and implementation of tribal resource management programs that support salmonid conservation represent an alternative to designating critical habitat that will result in a proportionate and essential contribution to salmon and steelhead conservation that is also consistent with the goals of the Secretarial Order. Also, all of these Tribal lands combined comprised only a minor portion (less than 3%) of the total watershed area for these 19 ESUs. Therefore, NMFS has determined that the critical habitat that is designated in this final rule is sufficient to provide for the conservation of these 5 species.

NMFS will continue to discuss this issue with interested tribes, in particular some tribes' concerns over the status of fee lands, and will modify critical habitat as needed in the future. Such modifications could include: (1) Recognizing that additional lands have been converted into trust status and are thereby excluded from critical habitat; or (2) designating Indian lands as critical habitat if the agency, in consultation with an affected tribe, determines that recovery cannot be achieved for an ESU unless the particular lands are designated.

The original proposals for steelhead and Oregon Coast coho identified specific tribes that should be excluded from critical habitat designation. However, given the complete exclusion of all Indian lands within the range of these 19 salmon and steelhead ESUs, NMFS believes there is no longer a need to identify all affected tribes. If, in future rulemaking, NMFS proposes to designate Indian lands, then the agency would specifically identify the affected landholdings.

As noted in the proposed rules for these 5 species of salmon and steelhead, critical habitat encompasses dozens of major river basins and an array of essential habitat features. Essential habitat types for these species can be generally described to include the following: (1) Juvenile rearing areas; (2) juvenile migration corridors; (3) areas for growth and development to adulthood; (4) adult migration corridors; and (5) spawning areas. Within these areas, essential features of critical habitat include adequate: (1) Substrate, (2) water quality, (3) water quantity, (4) water temperature, (5) water velocity, (6) cover/shelter, (7) food, (8) riparian vegetation, (9) space, and (10) safe passage conditions. Given the vast geographic range occupied by each of these salmon and steelhead ESUs and the diverse habitat types used by the various life stages, it is not practical to describe specific values or conditions for each of these essential habitat features. However, good summaries of these environmental parameters and freshwater factors that have contributed to the decline of salmon and steelhead can be found in reviews by CDFG, 1965; California Advisory Committee on Salmon and Steelhead Trout (CACSST), 1988; Brown and Moyle, 1991; Bjornn and Reiser, 1991; Nehlsen et al ., 1991; Higgins et al ., 1992; California State Lands Commission (CSLC), 1993; Botkin et al ., 1995; NMFS, 1996b; and Spence et al ., 1996.

For reasons described earlier in this document, NMFS has revised its designation of freshwater and estuarine critical habitat for chinook, chum, and sockeye salmon to include riparian areas that provide the following functions: shade, sediment transport, nutrient or chemical regulation, streambank stability, and input of large woody debris or organic matter. Habitat quality in this range is intrinsically related to the quality of riparian and upland areas and of inaccessible headwater or intermittent streams which provide key habitat elements ( e.g., large woody debris, gravel, water quality) crucial for salmon and steelhead in downstream reaches. Marine habitats ( i.e., oceanic or nearshore areas seaward of the mouth of coastal rivers) are also vital to salmon and steelhead, and ocean conditions are believed to have a major influence on the species' survival. Although NMFS has not included the Pacific Ocean as critical habitat in these final rules, the agency will be re-evaluating this issue and may propose including specific marine zones for salmon and steelhead ESUs in a separate notice.

NMFS is modifying the final critical habitat designations for these 19 ESUs based on comments and new information received on the proposed rules. The following section gives a general description of each ESU's range, identifies some of the larger salmon and steelhead basins within each ESU, and summarizes the major changes to critical habitat designations. The river basins identified do not constitute a comprehensive inventory; many small or unidentified streams and tributaries in each ESU also provide essential spawning, rearing and estuarine habitat for salmon and steelhead. Instead, these summaries are meant to supplement the USGS hydrologic units listed in Tables 7-24 with commonly-used river names within each ESU. The actual regulatory descriptions of critical habitat for each ESU can be found in the regulatory text at the end of this Federal Register document.

(1) Puget Sound ESU - Major river basins known to support this ESU include the Nooksack, Skagit, Stillaguamish, Snohomish, Green/ Duwamish, Puyallup, Nisqually, Skokomish, Dungeness, Cedar, and Elwha Rivers. Major bays and estuarine/marine areas include the South Sound, Hood Canal, Elliott Bay, Possession Sound, Admiralty Inlet, Saratoga Passage, Rosario Strait, Strait of Georgia, Haro Strait, and the Strait of Juan De Fuca. In this final rule, NMFS has: (1) Modified the description of the adjacent riparian zone to be based on a functional (rather than quantitative) description; (2) excluded all Indian lands (as previously defined) from the designation; (3) removed the Fraser and Crescent-Hoko hydrologic units from Table 7 because they are outside the range of the ESU; (4) included areas above Howard Hanson Dam due to the fact that trap and haul operations move listed chinook salmon into habitats above this dam; (5) included areas above Cushman Dam due to the presence of listed chinook salmon above the dam; (6) removed Cedar Falls Dam (Masonary Dam) since it does not delimit the upstream extent of river reaches inhabited by this ESU; and (7) added Landsburg Diversion and Alder Dam to Table 7 because they currently block upstream passage.

(2) Lower Columbia River ESU - Major river basins known to support this ESU include the Grays, Elochoman, Kalama, Lewis, Washougal, White Salmon, Cowlitz, Coweeman, Klaskanine, Clackamas, Sandy, and Hood Rivers, as well as Youngs Bay and the Columbia River and estuary. In this final rule, NMFS has: (1) Modified the description of the adjacent riparian zone to be based on a functional (rather than quantitative) description; (2) excluded all Indian lands (as previously defined) from the designation; (3) added the Upper Cowlitz hydrologic unit to Table 8 because it contains critical habitat for this ESU; (4) removed Cougar, Oak Grove, and Yale Dams from Table 8 since they do not delimit the upstream extent of river reaches inhabited by this ESU; (5) clarified that the dam in the Lower Columbia-Sandy hydrologic unit is “Bull Run Dam 2” and that The Dalles Dam is in the Middle Columbia-Hood hydrologic unit; and (6) included areas above Mayfield Dam due to the fact that trap and haul operations move listed chinook salmon into habitats above the dam.

(3) Upper Willamette River ESU - Major river basins known to support this ESU include the Willamette, Molalla, North Santiam, and McKenzie Rivers, as well as the Columbia River and estuary. In this final rule, NMFS has: (1) Modified the description of the adjacent riparian zone to be based on a functional (rather than quantitative) description; (2) excluded all Indian lands (as previously defined) from the designation; (3) corrected the range of the designation to include the Clackamas River Basin (which contains populations that are part of the ESU); (4) added Big Cliff, Blue River, Cottage Grove, Dorena, and Fern Ridge Dams to Table 9 because they currently block upstream passage; (5) included areas above Foster, Cougar, and Dexter Dams due to the fact that trap and haul operations move listed chinook salmon into habitats above these dams.

(4) Upper Columbia River Spring-run ESU - Major river basins known to support this ESU include the Wenatchee, Entiat, and Methow Rivers, as well as the Columbia River and estuary. In this final rule, NMFS has: (1) Modified the description of the adjacent riparian zone to be based on a functional (rather than quantitative) description; (2) excluded all Indian lands (as previously defined) from the designation; (3) added the Lower Willamette hydrologic unit to Table 10 because it contains critical habitat for this ESU; (4) removed the Okanogan hydrologic unit from Table 10 since it does not contain river reaches inhabited by the ESU; and (5) removed Bull Run and Condit Dams from Table 10 since they do not delimit the upstream extent of river reaches inhabited by this ESU.

(5) California Central Valley Spring-run ESU - Major river basins known to support this ESU include the Sacramento River, Feather River, Yuba River, and Big Chico, Beegum, Deer, Mill, Butte, Clear, Battle, and Antelope Creeks, as well as the Sacramento-San Joaquin Delta and Honker, Grizzly, Suisun, and San Francisco Bays. In this final rule, NMFS has: (1) Modified the description of the adjacent riparian zone to be based on a functional (rather than quantitative) description; (2) excluded all Indian lands (as previously defined) from the designation; (3) removed the Lower American, Cottonwood Headwaters, Upper Coon-Upper Auburn and Coyote hydrologic units from Table 11 since they do not contain river reaches inhabited by the ESU; (4) removed Nimbus, San Pablo, Shasta, and Calaveras Dams from Table 11 since they do not delimit the upstream extent of river reaches inhabited by this ESU; (5) added Centerville Dam to Table 11 because it currently blocks upstream passage; and (6) corrected the location of Englebright Dam to be in the Upper Yuba hydrologic unit.

(6) California Coastal ESU - Rivers, estuaries, and bays known to support this ESU include Humboldt Bay, Redwood Creek, and the Mad, Eel, Mattole, and Russian Rivers. In this final rule, NMFS has: (1) Modified the description of the adjacent riparian zone to be based on a functional (rather than quantitative) description; (2) excluded all Indian lands (as previously defined) from the designation; (3) removed several hydrologic units and dams/reservoirs that are no longer within the range of this re-configured ESU; (4) added Warm Springs Dam to Table 12 because it currently blocks upstream passage; and (5) specified the dams for two reservoirs - Scott Dam (Lake Pillsbury) and Coyote Dam (Lake Mendocino).

(1) Hood Canal Summer-run ESU - Rivers, estuaries, and bays known to support this ESU include the Quilcene, Dosewallips, Duckabush, Hamma Hamma, Lilliwaup, Dewatto, Tahuya, and Union Rivers, Dungeness Bay/River, and Snow and Salmon Creeks (Discovery Bay tributaries) and Jimmycomelately Creek in Sequim Bay. Some populations on the east side of Hood Canal (Big Beef Creek, Anderson Creek, and the Dewatto and Tahuya Rivers) are severely depressed and have recently had no returning adults. In this final rule, NMFS has: (1) Modified the description of the adjacent riparian zone to be based on a functional (rather than quantitative) description; (2) excluded all Indian lands (as previously defined) from the designation; (3) included estuarine/marine areas adjacent to the basins within the range of the ESU as well as areas of Admiralty Inlet and the Straits of Juan De Fuca; (4) corrected the range of the designation to extend as far west as Dungeness Bay/Basin (which contains populations that are part of the ESU); and (5) excluded areas above Cushman Dam or above longstanding, naturally impassable barriers.

(2) Columbia River ESU - Besides the Columbia River and estuary, presently only a few Washington streams are recognized as containing chum salmon: Hamilton and Hardy Creeks (near Bonneville Dam), and the Cowlitz and Grays Rivers. Oregon currently recognizes 23 “provisional” populations in the Columbia River Basin, ranging from the Lewis and Clark River to Milton Creek near St. Helens, Oregon (Kostow, 1995). In this final rule, NMFS has: (1) Modified the description of the adjacent riparian zone to be based on a functional (rather than quantitative) description; (2) excluded all Indian lands (as previously defined) from the designation; and (3) excluded areas above specific dams (Bonneville and Merwin Dams) or above longstanding, naturally impassable barriers.

(1) Ozette Lake ESU - Sockeye salmon in this ESU inhabit Ozette Lake and the Ozette River and currently spawn primarily in lakeshore upwelling areas in Ozette Lake (particularly at Allen's Bay and Olsen's Beach). Additional spawning areas may include the Ozette River (below Ozette Lake) and Coal Creek, a tributary of the Ozette River. Sockeye salmon do not presently spawn in tributary streams to Ozette Lake (although they may have spawned there historically), but currently there are efforts to propagate the species in Umbrella Creek. In this final rule, NMFS has: (1) modified the description of the adjacent riparian zone to be based on a functional (rather than quantitative) description; (2) excluded all Indian lands (as previously defined) from the designation; and (3) clarified that areas above longstanding, naturally impassable barriers are excluded.

(1) Oregon Coast ESU - Major river basins known to support this ESU include the Necanicum, Nehalem, Nestucca, Salmon, Siletz, Yaquina, Alsea, Yachats, Siuslaw, Umpqua, Coos, Coquille Rivers, and Siltcoos, Tahkenitch, and Tenmile Lakes Basins. In this final rule, NMFS has: (1) added Win Walker Reservoir to Table 15 because it currently blocks upstream passage; and (2) clarified that all Indian lands are excluded from the designation.

(1) Southern California ESU - Major river basins known to support this ESU include Malibu Creek and the Santa Clara, Santa Ynez, and Ventura Rivers. In this final rule, NMFS has: (1) removed Vern Freeman Dam (which was misidentified in the Ventura hydrologic unit) and Matilija Dam since they do not delimit the upstream extent of river reaches inhabited by this ESU; (2) corrected the location of Vaquero and Rindge Dams to be in the Santa Maria and Santa Monica Bay hydrologic units, respectively; (3) removed the Calluegas hydrologic unit from Table 16 since it does not contain river reaches inhabited by the ESU; and (4) clarified that all Indian lands are excluded from the designation.

(2) South-Central California Coast ESU - Major river basins known to support this ESU include the Big Sur, Carmel, Little Sur, Pajaro, and Salinas Rivers. In this final rule, NMFS has: (1) removed Los Padres Dam since it does not delimit the upstream extent of river reaches inhabited by this ESU; (2) added Lopez Dam, and Whale Rock, North Fork Pacheco, Chesbro, Nacimiento, and San Antonio Reservoirs to Table 17 because they currently block upstream passage; and (3) clarified that all Indian lands are excluded from the designation.

(3) Central California Coast ESU - Major river basins known to support this ESU include the Russian and San Lorenzo Rivers on the coast, and several other smaller tributaries within San Pablo and San Francisco Bays. In this final rule, NMFS has: (1) corrected the range of the designation to include Aptos Creek (which contains populations that are part of the ESU); (2) added Phoenix Dam, Almaden Reservoir, Anderson Reservoir, Calero Reservoir, Guadalupe Reservoir, Searsville Lake, Stevens Creek Reservoir, Vasona Reservoir, Chabot Dam, Crystal Springs Reservoir, Del Valle Reservoir, San Antonio Reservoir, Soulejule Dam, and Pilarcitos Dam to Table 18 because they currently block upstream passage; (3) corrected the location of Calaveras Reservoir to be in the San Francisco Bay hydrologic unit; (4) renamed Nicasio Dam to Peters Dam; (5) included the entire San Francisco Bay (west to the Golden Gate Bridge) as critical habitat; and (6) clarified that all Indian lands are excluded from the designation.

(4) California Central Valley ESU - Major river basins known to support this ESU include the Sacramento, San Joaquin, Stanislaus, American, Feather, Merced, Mokelumne, Tuolumne, and Yuba Rivers, Battle, Butte, Big Chico, Beegum, Cache, Deer, Mill, Antelope, Putah, Stony, and Cottonwood Creeks, as well as the Sacramento-San Joaquin Delta and Honker, Grizzly, Suisun, and San Francisco Bays. In this final rule, NMFS has: (1) added Centerville and Monticello Dams to Table 19 because they currently block upstream passage; (2) corrected the location of Whiskeytown Dam to be in the Sacramento-Upper Clear hydrologic unit; (3) added the Lower Cache and San Francisco Bay hydrologic units to Table 19 because they contain critical habitat for this ESU; and (4) clarified that all Indian lands are excluded from the designation.

(5) Upper Columbia River ESU - Major Columbia River tributaries known to support this ESU include the Entiat, Methow, Okanogan, and Wenatchee Rivers, as well as the Columbia River and estuary. In this final rule, NMFS has clarified that all Indian lands are excluded from the designation.

(6) Snake River Basin ESU - Major Snake River tributaries known to support this ESU include the Clearwater, Grande Ronde, Salmon, Selway, and Tucannon Rivers, as well as the Columbia River and estuary. In this final rule, NMFS has: (1) clarified that all Indian lands are excluded from the designation; and (2) clarified that areas upstream of Napias Creek Falls are excluded from the designation.

(7) Lower Columbia River ESU - Major Columbia River tributaries known to support this ESU include the Clackamas, Cowlitz, Hood, Kalama, Lewis, Sandy, Washougal, and Wind Rivers. In this final rule, NMFS has: (1) included areas above Mayfield Dam due to the fact that trap and haul operations move listed steelhead into habitats above these dams; and (2) clarified that all Indian lands are excluded from the designation.

(8) Upper Willamette River ESU - Major river basins known to support this ESU include the Willamette, Mollala, and Santiam Rivers, as well as the Columbia River and estuary. In this final rule, NMFS has: (1) corrected the range of the designation to exclude areas upstream of the Calapooia River Basin; (2) removed Bull Run, Cougar, Dexter, and Dorena Dams from Table 23 since they do not delimit the upstream extent of river reaches inhabited by this ESU; (3) corrected the location of Big Cliff Dam to be in the North Santiam hydrologic unit; and (4) clarified that all Indian lands are excluded from the designation.

(9) Middle Columbia River ESU - Major Columbia River tributaries known to support this ESU include the Deschutes, John Day, Klickitat, Umatilla, Walla Walla, and Yakima Rivers, as well as the Columbia River and estuary. In this final rule, NMFS has clarified that all Indian lands are excluded from the designation.

As a result of recent listing determinations affecting the geographic boundaries and ESA listing status of several chinook salmon ESUs (64 FR 50394, September 16, 1999), NMFS is not promulgating a final critical habitat designation for the Central Valley fall- and late-fall run chinook salmon ESU. Also, NMFS is excluding from designation areas north of Redwood Creek and south of the Russian River, including San Francisco and San Pablo Bay tributaries, that were originally proposed as critical habitat for the former southern Oregon and California coastal chinook salmon ESU (63 FR 11482, March 9, 1998). Finally, critical habitat for the Snake River fall-run chinook salmon ESU will remain in the range of watersheds originally designated on December 28, 1993 (58 FR 68543).

NMFS believes that special management considerations may be needed to ensure that essential habitats and features are maintained or restored. Activities that may require special management considerations for freshwater and estuarine life stages of listed salmon and steelhead include, but are not limited to: (1) land management; (2) timber harvest; (3) point and non-point water pollution; (4) livestock grazing; (5) habitat restoration; (6) beaver removal; (7) irrigation and domestic water withdrawals and returns; (8) mining; (9) road construction; (10) dam operation and maintenance; (11) diking and streambank stabilization; and (12) dredge and fill activities. Not all of these activities are necessarily of current concern within every watershed; however, they indicate the potential types of activities that will require consultation in the future. At this time, no special habitat management considerations have been identified for listed salmon and steelhead while they are residing in the ocean environment.

A wide range of activities may affect the essential habitat requirements of listed salmon and steelhead in freshwater and estuarine habitats. More in-depth discussions are contained in the response to comments under Scope and Extent of Critical Habitat and in Federal Register documents announcing the proposed critical habitat for each ESU (63 FR 11482, March 9, 1998; 63 FR 11750, March 10, 1998; 63 FR 11774, March 10, 1998; 64 FR 5740, February 5, 1999; 64 FR 24998, May 10, 1999). These activities include water and land management actions of Federal agencies (e.g., U.S. Forest Service, U.S. Bureau of Land Management, U.S. Army Corps of Engineers, U.S. Bureau of Reclamation, the Federal Highway Administration, Natural Resource Conservation Service, National Park Service, Bureau of Indian Affairs, and the Federal Energy Regulatory Commission) and related or similar actions of other federally regulated projects and lands, including livestock grazing allocations by the U.S. Forest Service and U.S. Bureau of Land Management; hydropower sites licensed by the Federal Energy Regulatory Commission; dams built or operated by the U.S. Army Corps of Engineers or U.S. Bureau of Reclamation; timber sales conducted by the U.S. Forest Service and U.S. Bureau of Land Management; road building activities authorized by the Federal Highway Administration, U.S. Forest Service, U.S. Bureau of Land Management, and National Park Service; and mining and road building activities authorized by the states of California and Oregon. Other actions of concern include dredge and fill, mining, diking, and bank stabilization activities authorized or conducted by the U.S. Army Corps of Engineers, habitat modifications authorized by the Federal Emergency Management Agency, and approval of water quality standards and pesticide labeling and use restrictions administered by the Environmental Protection Agency.

The Federal agencies that will most likely be affected by this critical habitat designation include the U.S. Forest Service, U.S. Bureau of Land Management, U.S. Bureau of Reclamation, U.S. Army Corps of Engineers, Federal Highway Administration, Natural Resource Conservation Service, National Park Service, Bureau of Indian Affairs, Federal Emergency Management Agency, Environmental Protection Agency, and the Federal Energy Regulatory Commission. This designation will provide these agencies, private entities, and the public with clear notification of critical habitat designated for listed salmonids and the boundaries of the habitat and protection provided for that habitat by the section 7 consultation process. This designation will also assist these agencies and others in evaluating the potential effects of their activities on listed salmon and steelhead and their critical habitat and in determining if consultation with NMFS is needed.

NMFS anticipates that numerous private entities will be affected by the ESA listings and the resultant need to carry out conservation measures throughout the species' current range. As noted above, many of these effects result from direct and indirect linkages to an array of Federal actions, including Federal projects, permits, and funding. For example, the fishing industry (both the commercial and recreational sectors) is already hard hit by declining salmon runs and will continue to suffer until the species recover and provide sustainable fisheries. Agriculture and forestry sectors typically require Federal permits or authorizations to harvest timber, graze livestock, apply herbicides/pesticides, irrigate crops, or build associated access roads in salmon watersheds. These permits will need to be modified so that they are adequately protective of salmon and their habitats. In some cases, such modifications could result in decreases in timber harvest, and livestock and crop production. The transportation and utilities sectors may need to modify the placement of culverts, bridges and utility conveyances (e.g., water, sewer and power lines) to avoid barriers to fish migration. Developments occurring in or near salmon streams (e.g., marinas, residential, or industrial facilities) may need to be altered or built in a manner that ensures that listed fish will not be harmed by the construction, or subsequent operation, of the facility. Recreational and commercial mining operations will need to ensure that their actions do not jeopardize listed species. Recreational and tourism industries may have ESA-related restrictions imposed so that activities such as fishing enterprises are conducted in a manner that safeguard spawning fish and their habitats.

In addition, the widespread ESA listings underscore that both urban and rural communities could face significant changes in how they approach such diverse activities as: planning, zoning, and construction/development; erosion and sediment control; floodplain management; water withdrawals and supply reservoirs; and stormwater and wastewater discharges. These are just a few examples of potential impacts, but it is clear that the effects will encompass numerous sectors of private and public activities.

The economic impacts to be considered in a critical habitat designation are the incremental effects of critical habitat designation above the economic impacts attributable to listing or attributable to authorities other than the ESA (see response to comments under Economic Considerations). Incremental impacts result from special management activities in those areas, if any, outside the present distribution of the listed species that NMFS has determined to be essential to the conservation of the species. For these 19 salmon and steelhead ESUs NMFS has determined that the present geographic extent of their freshwater and estuarine range is likely sufficient to provide for conservation of the species, although the quality of that habitat needs improvement on many fronts. Because NMFS is not designating any areas beyond the current range of these ESUs as critical habitat, the designation will result in few, if any, additional economic effects beyond those that may have been caused by listing and by other statutes.

NMFS has determined that Environmental Assessments and Environmental Impact Statements, as defined under the National Environmental Policy Act of 1969, need not be prepared for critical habitat designations made pursuant to the ESA. See Douglas County v. Babbitt , 48 F.3d 1495 (9th Cir. 1995), cert. denied, 116 S.Ct. 698 (1996).

The complete citations for the references used in this document can be obtained by contacting Garth Griffin, NMFS (see FOR FURTHER INFORMATION CONTACT ) or via the Internet (see ADDRESSES ).

This rule has been determined to be significant for purposes of Executive Order (E.O.) 12866.

NMFS is designating only the current range of these salmon and steelhead ESUs as critical habitat. Given the affinity of these species to spawn in small watersheds, this current range encompasses a wide range of habitat, including lakes, small tributary reaches, as well as mainstem, off-channel and estuarine areas. Areas excluded from this designation include historically-occupied areas above impassable dams and headwater areas above impassable natural barriers (e.g., long-standing, natural waterfalls). Since NMFS is designating the current range of the listed species as critical habitat, this designation will not impose any additional requirements or economic effects upon small entities, beyond those which may accrue from section 7 of the ESA. Section 7 requires Federal agencies to insure that any action they carry out, authorize, or fund is not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of critical habitat (ESA § 7(a)(2)). The consultation requirements of section 7 are nondiscretionary and are effective at the time of species' listing. Therefore, Federal agencies must consult with NMFS and ensure their actions do not jeopardize a listed species, regardless of whether critical habitat is designated.

In the future, should NMFS determine that designation of habitat areas outside the species' current range is necessary for conservation and recovery, NMFS will analyze the incremental costs of that action and assess its potential impacts on small entities, as required by the Regulatory Flexibility Act. Until that time, a more detailed analysis would be premature and would not reflect the true economic impacts of the proposed action on local businesses, organizations, and governments.

Accordingly, the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule would not have a significant economic impact of a substantial number of small entities, as described in the Regulatory Flexibility Act.

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 appropriate State and local officials following its proposal to designate the critical habitat described in this final rule. While these officials, and other interested parties, expressed support for protection of the listed species, they also expressed support for activities that may be affected by the designation. The SUPPLEMENTARY INFORMATION section of this rule discusses these comments and NMFS' responses. Among other things, the responses address concerns regarding the scope and extent of critical habitat, and concerns regarding possible impacts of a critical habitat designation. The areas described in this final rule represent the current freshwater and estuarine range of the listed species. For all ESUs, critical habitat includes all waterways, substrate, and adjacent riparian zones below longstanding, naturally impassable barriers. The economic (and other) impacts resulting from this critical habitat designation are expected to be minimal.

This rule does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act.

For the reasons set out in the preamble, 50 CFR part 226 is amended as follows:

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The interim 2000 pollock TAC in the Shelikof Strait conservation area as amended by the emergency interim rule implementing Steller sea lion protection measures for the pollock fisheries off Alaska (65 FR 3892, January 25, 2000) and an inseason adjustment (65 FR 4892, February 2, 2000) is 13,991 metric tons (mt), determined in accordance with § 679.22(b)(3)(iii)(C).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the interim TAC of pollock in the Shelikof Strait conservation area will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 13,491 mt, and is setting aside the remaining 500 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.22(b)(3)(iii)(A), the Regional Administrator finds that this directed fishing allowance will soon be reached. Consequently, NMFS is prohibiting directed fishing for pollock in the Shelikof Strait conservation area in the GOA.

Maximum retainable bycatch amounts may be found in the regulations at § 679.20(e) and (f).

This action responds to the best available information recently obtained from the fishery. It must be implemented immediately to prevent overharvesting the seasonal allocation of pollock in the Shelikof Strait conservation area. Providing prior notice and an opportunity for public comment is impracticable and contrary to the public interest. Further delay would only result in overharvest. NMFS finds for good cause that the implementation of this action should not be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.

This action is required by § 679.20 and is exempt from review under E.O. 12866.