OSHA has prepared this analysis of the costs, benefits, number of establishments and employees affected, and potential impacts of OSHA's proposed ergonomics program standard on state and local governments in State-plan states, railroads, and the United States Postal Service. The methodology used to analyze the economic effects of the proposed standard for these sectors is the same as that used for other industries in OSHA's Preliminary Economic Analysis of the Proposed Ergonomics Program Standard (PEA) (Ex. 28-1). Where different sources of data or different assumptions are used for these three sectors, they are noted in a Technical Appendix (Ex. 28-15).

As indicated in the preamble to the ergonomics rule [64 FR 66054], OSHA standards do not apply to state and local governments, except in states that have voluntarily elected to adopt an OSHA State Plan. Because state and local governments in State-plan states can be expected to implement the rule, OSHA has analyzed the costs and impacts, as well as benefits, of the proposal for those state and local governments in State-plan states. Currently, California (a State-plan state) has its own ergonomics standard, and other states are in the process of developing their own. However, for simplicity, this summary analysis ignores the effects of existing and proposed state ergonomics regulations.

OSHA shares jurisdiction for occupational safety and health in the railroad industry with the Federal Railroad Administration. Although a number of railroad employees will not be covered by this standard, OSHA has not located data to identify what proportion of employees will be affected by the standard and has therefore decided to include all railroad workers in this analysis. This results in a substantial overestimate of the impact of the proposal on the railroad industry.

The US Postal Service (USPS) is now entirely under the jurisdiction of OSHA, and would thus be affected in the same ways as other private-sector employers.

Employment in These Three Industries: Based on Bureau of the Census data, there were 8.7 million state and local government employees in State-plan states in 1997. This total excludes those employees working in some governmental entities, notably hospitals, which have already been included in OSHA's PEA (Ex. 28-1) because they were included in the Census Bureau's County Business Patterns data used for that analysis (Ex. 28-2, p. vi). For the railroad industry, the Bureau of Labor Statistics reported that a total of 226,500 employees work for the railroads. Based on the USPS annual report, there were 904,636 employees, including non-career employees, in the Postal Service in 1998 [USPS, 1998].

Number of Musculoskeletal Disorders (MSDs) in These Three Industries: Using data on OSHA recordable MSDs provided to the record by the AFL-CIO [Ex. 32-339-1], and adjusting these data to accord with the scope of the proposed rule and OSHA's definition of MSDs, OSHA estimates that there were approximately 175,000 MSD cases (both lost workday and non-lost workday) among employees in general industry in state and local governments in State-plan states. OSHA estimates, using the same data and methodology for estimating the number of OSHA recordable MSDs that were used for all other private-sector businesses in the Preliminary Economic Analysis (Ex. 28-1), that there were a total of 1,250 MSDs in the railroad industry, of which 781 were lost workday MSDs. For the USPS, information on OSHA-recordable MSDs was not available; OSHA therefore estimated that the number of MSDs among postal workers was equal to the number of filed workers' compensation claims due to “exertion” (defined as including both overexertion and repetition cases) filed with the Federal Office of Workers' Compensation Programs in fiscal year 1996 (OWCP, 1996). There were 29,407 such cases in that year.

Number of Establishments in These Three Sectors: Establishment data are needed because portions of the proposed standard are triggered on an establishment basis. Establishment data are not available for any of these sectors; OSHA therefore used a variety of estimation techniques to calculate this information. OSHA estimated that there are 167,788 state and local government establishments, 4,802 railroad establishments, and 33,613 USPS establishments, including both post offices and classified stations. OSHA welcomes comment both on the number of establishments in these sectors, and on how, for regulatory purposes, establishments should be defined for state and local governments and for railroads. For example, if several state agencies work in a single building, would they be considered one or several establishments? Would the reporting structure applying to these agencies, e.g., whether they report to separate branches of state government, affect this definition?

OSHA's method for estimating the potential reductions in the number of MSDs the proposed standard would prevent and monetizing the benefits associated with this reduction are described in detail in Chapter IV of the PEA [Ex. 28-1]. The Agency estimates that, during the first ten years after implementation of the proposed standard, the proposal would prevent 476,000 covered MSDs among state and local government employees, nearly 1,900 covered MSDs among railroad employees, and approximately 94,000 covered MSDs among postal workers. The Agency estimates that the proposed standard will capture additional annual benefits of approximately $1 billion as a result of including workers in state and local government in State-plan states, the US Postal Service, and the railroads.

Following the methodology presented in the Chapter V of the Preliminary Economic Analysis [Ex. 28-1], OSHA estimated the annual costs of compliance for these three industries. Table 1 presents the proposal's total annual costs and the total cost to employers for these three sectors. In total, these three industries add $418 million per year to the total costs (to society) of the rule, and $588 million per year to the costs of the proposal to employers. (The difference between these two costs is the cost of the proposal's Work Restriction Protection provisions, which is a cost to employers but does not represent a net cost to society.)

As in the Preliminary Economic Analysis [Ex. 28-1], OSHA conducted a screening analysis of the potential impacts of the proposed standard on the before-tax profits and sales of the affected industries. A screening analysis simply looks at the projected costs of the proposal as a percentage of the pre-tax profits and sales of the affected industries but does not actually predict the magnitude of the impacts of these costs on these before-tax profits or sales. Screening analyses are used to determine whether the compliance costs potentially associated with the proposed standard could lead to significant impacts on affected establishments under the two worst case scenarios (full cost passthrough and no cost passthrough). OSHA has used the same methodology in its screening analysis for the three industries of interest here. The actual impact of the proposed standard on the profit and sales of establishments in a given private industry will depend on the price elasticity of demand for the products or services produced by establishments in that industry, as discussed in detail in Chapter VI of the Preliminary Economic Analysis [Ex. 28-1]. For the public (government) sector, the impacts of the proposal's compliance costs would indicate the extent to which the government jurisdiction would have to raise taxes or cut back on government services.

According to the Census Bureau, total revenues to state and local government in the State-plan states in Fiscal Year 1996 were $763.3 billion [Census, 1996]. The annual costs of compliance for the proposed standard would therefore be equal to approximately 0.07 percent of these revenues. Increasing the amount of tax collected by these entities by $7 for every $10,000 of revenue currently collected would permit these entities to fully recover outlay. (For comparison, annual increases to payroll made to stay even with inflation are normally 15 to 20 times these costs.) Changes of this small magnitude will have little or no effect on the ability of state and local governments to deliver services to their constituents.

In the railroad industry, estimated annual revenues are $36.9 billion, and thus the costs of compliance with the standard are estimated to equal 0.03% of revenues under the worst-case scenario for price increases [DOT, 1999]. Robert Morris Associates [Ex. 28-10] estimated the pre-tax profit rate for the railroad industry in 1996 to be 12.2%. The standard's costs are therefore estimated to represent 0.21% of profits in the worst case scenario for profits. Even if the costs of compliance were taken entirely from profits (a highly unlikely scenario), they would only reduce, for example, $1,000,000 in profits to $997,900. Such a change in profits would have no measurable effect on the viability or competitive structure of the railroad industry.

The U.S.P.S. reported revenues in 1996 of $56.6 billion [USPS, 1998]. Therefore, the cost of complying with the proposal in SIC 43 would amount to 0.14% of revenue. Such a change in revenues is too small to significantly impact finances or raise questions of economic feasibility. For comparison, annual increases to payroll made to stay even with inflation are 10 to 15 times the annual costs of complying with the proposal. Such an impact will have no effect on the viability of the U.S. Postal Service.

The Agency also examined the impact of the costs of the proposal on small governmental entities, i.e., those governmental jurisdictions serving fewer than 50,000 people. According to the Census Bureau's employment and payroll survey, there were 17,289 governmental jurisdictions with fewer than 50,000 people in the State-plan states, employing a total of 2,312,873 workers. OSHA estimates that these jurisdictions include approximately 45,357 establishments, although defining these in the public sector is difficult, since no data on this point are available. Employing the assumptions used to analyze the costs of the standard to state and local governments, the estimated annualized cost of the proposal to small governmental entities would be $152 million. According to the Census' survey of government revenues, the revenues in governmental jurisdictions serving fewer than 50,000 people in State-plan states in 1996 were $101 billion. Therefore, the costs of compliance would be equal to 0.15 percent of the revenues of these entities.

The Small Business Administration defines “small” railroads as those employing fewer than 1500 employees in SIC 4013 and fewer than 500 in SIC 4011. For the purposes of this analysis, OSHA is classifying all local and regional railroads in the “small” category. Using the same methodology as that described above, OSHA estimates the costs of compliance for small railroad companies to be $896,233, or 0.03 of the revenues and 0.24 percent of the profits, of these companies.

Because the U.S. Postal Service represents the only large governmental entity serving all U.S. citizens, there are no small entities in SIC 43.

The impacts of the proposed standard on the small entities in the state and local government and railroad industries do not exceed OSHA's criteria for identifying significant impacts on small entities-compliance costs equal to more than 1 percent of revenues or 5 percent of profits.

BLS, 1997. Bureau of Labor Statistics, “National Employment, Hours, and Earnings”, Found at: http://146.142.4.24/cgi-bin/dsrv

U.S. Bureau of the Census. Survey of Government Employment and Payroll, March 1997.

Data found at: http://www.census.gov/govs/www/apes97loc.html

U.S. Bureau of the Census. State and Local Finance Estimates, by State: 1995-96. Data found at: http://www.census.gov/www/esti96.html

U.S. Department of Transportation, Bureau of Transportation Statistics, Transportation Statistics Annual Report, 1999. Found at: http://www.bts.gov/programs/transtu/tsar/tsar99/tsar99pt.html

U.S. Postal Service, 1998 Annual Report. Found at: http://www.usps.gov/history/anrpt98/pdf.htm

OWCP 1996. Federal Agency Injury and Illness Data Base, derived from Office of Workers' Compensation Programs Case Create data file, Department of Labor, Fiscal Year 1996. Formatted by OSHA Office of Management and Data Systems. (Unpublished).

OSHA requests any additional, relevant data and information and comment on all aspects of this analysis, and on the data sources and methodology used for this analysis, as outlined in the Technical Appendix, Exhibit 28-15.

In 1995, Congress enacted the Digital Performance Right in Sound Recordings Act of 1995 (“DPRA”), Public Law 104-39, which created an exclusive right for copyright owners of sound recordings, subject to certain limitations, “to perform the copyrighted work publicly by means of a digital audio transmission.” 17 U.S.C. 106(6). Among the limitations on the performance was the creation of a licensing scheme for interactive digital audio services and a compulsory license for nonexempt, noninteractive, digital subscription transmissions, 17 U.S.C. 114(d)(2), (3) and (f) (1995). In addition, Congress exempted certain transmissions and retransmissions from the newly created performance right, 17 U.S.C. 114(d)(1) (1995).

In enacting the DPRA, Congress had two purposes: (1) To ensure that recording artists and record companies will be protected as new technologies affect the way in which their creative works are used; and (2) to create fair and efficient licensing mechanisms that address the complex issues facing copyright owners and copyright users as a result of the rapid growth of digital audio services. H.R. Rep. No. 105-796, at 79-80 (1998). It soon became apparent, however, that with the rapid proliferation of the use of the Internet as a transmission medium and the confusion surrounding the question of how the DPRA applied to some nonsubscription digital audio services, further legislation was needed to achieve these goals.

These changes were part of the Digital Millennium Copyright Act of 1998 (“DMCA”), Public Law 105-304, which, among other things, amended sections 112 and 114 of the Copyright Act to clarify that “the digital sound recording performance right applies to nonsubscription digital audio services such as webcasting” and to address the licensing issues raised by the webcasters. Staff of the House of Representatives Comm. on the Judiciary, 105th Cong., 2d Sess., Section-by-Section Analysis of H.R. 2281 as Passed by the United States House of Representatives on August 4, 1998 at 50 (Comm. Print, Serial No. 6, 1998). Specifically, Congress amended section 114 by creating a new statutory license for nonexempt eligible nonsubscription transmissions (e.g., webcasting) and nonexempt transmissions by preexisting satellite digital audio radio services.

For purposes of the DMCA, an “eligible nonsubscription transmission” is defined as:

A key element of the definition is the requirement that the transmission must be “non-interactive.” Unless a service meets this criterion, it is ineligible for the statutory license and, therefore, must negotiate a voluntary agreement with the copyright owner(s) of the sound recordings before performing the works by means of digital audio transmissions.

This distinction between interactive and non-interactive has always been critical to determining the rights of a copyright user under section 114, since Congress believed “interactive services [were] most likely to have a significant impact on traditional record sales, and therefore pose[d] the greatest threat to the livelihoods of those whose income depends upon revenues derived from traditional record sales.” S. Rep. No. 104-128, at 16 (1995). For this reason, interactive services are excluded from the limitations placed upon the new performance right and, consequently, must conduct arms-length negotiations with the copyright owners of the sound recordings before making a digital transmission of the works.

Congress first defined an “interactive service” in the DPRA as a service that:

The second sentence was added to make clear that “the term ‘interactive service’ is not intended to cover traditional practices engaged in by, for example, radio broadcast stations, through which individuals can ask the station to play a particular sound recording as part of the service's general programming available for reception by members of the public at large.” S. Rep. No. 104-128, at 33-34 (1995).

In the DMCA, Congress expanded this definition to include further explanation of the type of activity that does not, in and of itself, make a service interactive. Specifically, the DMCA refined the definition of an “interactive service” as follows:

(7) An “interactive service” is one that enables a member of the public to receive a transmission of a program specially created for the recipient, or on request, a transmission of a particular sound recording, whether or not as part of a program, which is selected by or on behalf of the recipient. The ability of individuals to request that particular sound recordings be performed for reception by the public at large, or in the case of a subscription service, by all subscribers of the service, does not make a service interactive, if the programming on each channel of the service does not substantially consist of sound recordings that are performed within 1 hour of the request or at a time designated by either the transmitting entity or the individual making such request. If an entity offers both interactive and noninteractive services (either concurrently or at different times), the noninteractive component shall not be treated as part of an interactive service.

In both cases, Congress sought to identify a service as interactive according to the amount of influence a member of the public would have on the selection and performance of a particular sound recording. Neither definition, however, draws a bright line delineating just how much input a member of the public may have upon the basic programming of the service. Consequently, the Digital Media Association (“DiMA”) seeks clarification on this point and a regulation that would prohibit designating a service as interactive merely because it offers a consumer some degree of influence over the streamed programming.

On April 17, 2000, DiMA  1 filed a petition for a rulemaking with the Copyright Office asking that the Office adopt a rule stating that a webcasting service does not become an interactive service merely because a consumer exerts some degree of influence over the streamed programming. DiMA seeks modification of the current regulation that defines a “Service” in order to better distinguish between activities that make a webcasting service non-interactive from those activities that make a service interactive. 37 CFR 201.35(b)(2). The amendment would add specific language to clarify that services which otherwise meet the requirements for the compulsory license set forth in section 114(f) do not become ineligible for the section 114 statutory license merely because they offer the consumer some degree of influence over the streamed programming. DiMA then proposes additional language which, in its view, would clarify that such a webcasting service is not an “interactive service” under section 114(j)(7) of the Copyright Act, provided that the service meet three criteria.

The text of the proposed amendment, to be added at the end of the current regulatory text, would read as follows:

In support of its petition, DiMA argues that the consumer input is merely a guide to program selections and that “the actual transmissions of sound recordings over these consumer-influenced stations is generated by a computer according to programs and playlists created by the service, * * * such [that] listeners (including the ‘creator(s)’ of consumer-influenced stations) never have the ability to determine or know in advance whether any particular song or album will be performed or even when, over an extended period, any particular artist's works will appear.” Petition at 12. In summary, DiMA argues that consumer-influenced stations comply with the spirit and intent of the law because the contribution of the consumer does not increase the risk that the consumer will make copies of the transmissions and displace the sale of a sound recording in the marketplace.

DiMA asserts that this issue must be resolved prior to the convening of the Copyright Arbitration Royalty Panel (“CARP”) which will determine the rates for the section 114 statutory license “in order to define the appropriate bounds of the statutory license proceedings—which will be before this CARP.” Petition at 2. DiMA requests this rulemaking for the purpose of defining the scope of the pending arbitration proceeding that will set rates and terms for the section 114 statutory license with respect to the known “consumer-influenced webcasting technologies presently developed or employed by DiMA members.” Petition at 6 n.3.

Under section 702 of the Copyright Act, title 17 of the United States Code, the Register of Copyrights can “establish regulations not inconsistent with law for the administration of the functions and duties made the responsibility of the Register under this title.” The question is whether a rulemaking proceeding is the appropriate forum for determining whether certain activities make a service “interactive.” While this may, at first glance, appear to be an endeavor similar to the subject of the pending rulemaking regarding definition of a “service,”  2 that proceeding presents a situation involving a clearly defined class of services (“any entity that transmits an AM/FM broadcast signal over a digital communications network such as the Internet”). See 65 FR 14227 (March 16, 2000). In contrast, it is debatable whether the DiMA petition has presented a clearly defined class of services. Moreover, assuming that this is an appropriate topic for a rulemaking proceeding, it is not clear whether there is sufficient information at this time to promulgate a regulation that could accurately distinguish between activities that are interactive and those that are not. The Office is concerned that it may be being asked to define a moving target.

Interested parties are invited to comment on: (1) Whether the Office should conduct the rulemaking on the subject addressed in the DiMA petition, and (2), if so, what issues should the Office address and what should the Office's conclusion be?

All interested parties are requested to file comments and replies with the Copyright Office in accordance with the information set forth in this document. The Copyright Office has posted the DiMA petition to its website (http:// www.loc.gov/copyright/carp/DiMApetition.pdf) in order to facilitate the dissemination of the information presented in the petition.

Sections 110(a)(2)(F), 110(a)(2)(K), 110(a)(2)(J),112, 182(a)(3)(B), 172(c)(3), 182(a)(3)(A), 187(a)(5), 301(a)

Emission inventories are critical for the efforts of State, local, and federal agencies to attain and maintain the National Ambient Air Quality Standards (NAAQS) that EPA has established for criteria pollutants such as ozone, particulate matter, and carbon monoxide. Pursuant to its authority under section 110 of Title I of the Clean Air Act, EPA has long required State Implementation Plans (SIPs) to provide for the submission by States to EPA of emission inventories containing information regarding the emissions of criteria pollutants and their precursors ( e.g ., volatile organic compounds (VOC)). EPA codified these requirements in 40 CFR part 51, subpart Q in 1979 and amended them in 1987.

The 1990 Amendments to the Clean Air Act (Act) revised many of the provisions of the Clean Air Act related to the attainment of the NAAQS and the protection of visibility in mandatory class I Federal areas (certain national parks and wilderness areas). These revisions establish new periodic emission inventory requirements applicable to certain areas that were designated nonattainment for certain pollutants. For example, section 182(a)(3)(A) required States to submit an emission inventory every three years (3-Year cycle) for ozone nonattainment areas beginning in 1993. Emissions reported must include VOC, nitrogen oxides (NO x ), and carbon monoxide (CO) for point, area, mobile (onroad and nonroad), and biogenic sources. Similarly, section 187(a)(5) requires States to submit an inventory every three years for CO nonattainment areas for the same source classes, except biogenic sources. EPA, however, did not codify these statutory requirements in the Code of Federal Regulations (CFR), but simply relied on the statutory language to implement them.

EPA has promulgated the NO x SIP Call (§ 51.122) which calls on the effected States and the District of Columbia to submit SIP revisions providing for NO X reductions in order to reduce the amount of ozone and ozone precursors transported between states. As part of that rule, EPA established reporting requirements to be included in the SIP revisions to be submitted by States in accordance with that action.  1

This proposal consolidates the various reporting requirements that already exist into one place in the CFR, establishes new ones for PM  2.5 and regional haze, establishes new requirements for the statewide reporting of area source and mobile source emissions, includes the reporting requirements for the NO X SIP call and asks for comments on new reporting for air toxics.

In this action, we refer to these types of inventories as the following:

• Point source inventories

• 3-Year cycle inventories

• NO X SIP call inventories

States use data obtained through current annual reporting requirements (point source inventories) to record emissions from large sources and to track progress in reducing emissions from them. States get 3-Year cycle data from stationary sources with lower yearly emission levels and use them with the point source inventories to update their emission inventory every three years. States included in the NO X SIP call will collect emissions data from the sources that are subject to control as a means of compliance. The Rule also takes advantage of data from Emission Statements available to States but not reported to EPA. As appropriate, States may use this data to meet their reporting requirements for point source data. Combining data from these activities gets the most information from sources with the least burden on the industry and less effort by State and local government agencies. By treating this information as a comprehensive emission inventory, States and local agencies may do the following:

• Measure their progress in reducing emissions.

• Have a tool they can use to support future trading programs.

• Set a baseline from which to do future planning.

• Answer the public's request for information.

We intend these inventories to help nonattainment areas develop and meet SIP requirements to reach the NAAQS.

States will need to inventory direct emissions of PM 2.5 and its precursors beginning in 2000 for the inventory year 1999. Since PM 2.5 is a NAAQS pollutant, we feel it is appropriate to begin collecting this emissions data. 2 States will also have to estimate direct emissions of primary particulate matter and PM 2.5 precursor emissions of condensible organics and ammonia. These PM 2.5 related data elements are needed as input to emission models. The Administrator has determined that States should submit statewide point source and 3-Year cycle inventories for PM 10 , PM 2.5 , and regional haze, consistent with the data requirements for O 3 and CO. Sections 110(a)(2)(F) and 172(c)3 provide ample statutory authority for this proposal as it relates to criteria pollutants. Section 110(a)(2)(F) provides that SIPs are to require “as may be prescribed by the Administrator * * * (ii)periodic reports on the nature and amounts of emissions and emissions-related data from such sources.” Section 172(c)(2)(3) provides that SIPs for nonattainment areas are to “include a comprehensive, accurate, current inventory of actual emissions from all sources of the relevant pollutant or pollutants in such area, including such periodic revisions as the Administrator may determine necessary to assure that the requirements of this part are met.” Additional statutory authority for emissions inventories from 1-hour ozone nonattainment areas is provided by section 182(a)(3)(A) and for emissions inventories from CO nonattainment areas is provided by section 187(a)(5). Section 301(a) provides authority for EPA to promulgate regulations embodying these provisions.

The purpose of this rule is fourfold:

• Simplify emissions reporting,

• Offer options for data exchange

• Unify reporting dates for various categories of inventories, and

• Include reporting fine particulate matter and its precursors.

Previous requirements may have, at times, led to inefficient reporting. This rule provides options for reporting that allow States to match their ongoing activities with federal requirements and provides two options for transmitting data to EPA. This action also consolidates existing and new requirements of emission inventory programs for point sources and 3-Year cycles.

This rule will apply to State and local air pollution control agencies. In the rule, we have adopted “plain English language”. When “you” is used we mean the State or local agency. When “we” is used, EPA is meant.

Your State's inventory will add PM 2.5 , and PM 2.5 precursors to the criteria pollutants.

Your State now reports point source emissions statewide and emissions from area and mobile sources by nonattainment area. Your State's new inventory will be statewide by county for all source types, regardless of the attainment status.

Your State will continue to report emissions from very large point sources (See Table 1) annually. Your State has a choice to report smaller point sources every three years or one-third of the sources each year. Your State will continue to report emissions from nonattainment areas for area and mobile sources every three years. Attainment areas will be required, for the first time, to report area and mobile source emissions.

EPA uses emission inventories to form realistic public policy by the following:

• Modeling analyses,

• Projecting future control strategies,

• Tracking progress to meet requirements of the Clean Air Act,

• Calculating risk, and

• Responding to public inquiries.

Most of the information EPA needs is readily available from States because of the States' efforts to follow the Clean Air Act and its amendments. Using data States have already estimated or collected is a cheaper, more efficient way for us to get information to analyze. EPA can pull your data into a central repository of emissions data and extract what we need to fulfill our mandates.

Recent events have shown that some States need emissions data for areas outside their borders. Programs such as the Ozone Transport Assessment Group, the Ozone Transport Commission NO X Baseline study, and the Grand Canyon Visibility Transport Commission demonstrated this need. As we recognize pollution as a regional problem, agencies will need multistate inventories more often to do such things as regional modeling.

We can meet our common needs by creating a central repository of data from State and local agencies, or a group of regional emissions databases. Such repositories offer the advantage of ready access and availability, common procedures for ensuring the quality of data, and an ability to meet the general needs of many potential users.

If we don't receive your emissions information at the time this rule specifies, we'll use whatever we have to produce emissions data for your agency's geographical area. Congress often mandates our analyses, so we depend on you to provide the data to complete them. If we don't get your data, we must find other ways to compile similar information.

We can estimate your agency's inventory by any of the following:

• National allocation (top down) methods,

• Projecting from previous data, or

• Using our best judgment.

For area and mobile sources, our methods usually represent your emissions reasonably well. For point sources, our estimates are less accurate. We have to estimate activity and plant parameters based on general knowledge rather than using your specific information.

The Act provides for other actions against a State if we do not receive your data. For example, if a State does not provide emissions data for NAAQS pollutants in nonattainment areas, EPA may take actions such as making findings of failure to submit, that are authorized in instances where a State fails to fulfill SIP obligations.

We are seeking comment on the advisability of requiring new reporting of hazardous air pollutants (HAP) emissions.

In addition to the emission inventory provisions related to NAAQS pollutants, EPA is also considering requiring emission inventory reporting of HAPs. The requirements for HAP reporting would be imposed under authority of section 301(a) which authorizes the Administrator to prescribe such regulations as are necessary to carry out her functions under the Act. Several provisions in the CAA address HAPs and, by the nature of their requirements, imply the need for a HAP emissions inventory. Some examples follow.

Title V of the Act requires the Administrator to perform an oversight role with respect to State issued permits, including permits issued to major sources of HAP emissions. In order to determine whether that program is being appropriately and lawfully administrated by the States with respect to major HAP sources, a HAP emission inventory is necessary. You are developing programs to regulate HAPs and your Title V programs must include permits for all HAP sources emitting major quantities of HAPs (10 tons of one HAP or 25 tons of multiple HAPs per year). Thus, the Administrator believes including HAPs in the point source inventory is appropriate and necessary.

Section 112(n)(1)(A) requires us to report to Congress on the hazards to public health reasonably anticipated to occur as a result of emissions from electric utility steam generating units. Section 112(n)(1)(B) requires us to provide a report to Congress that considers the rate and mass of HAP emissions and the health and environmental effects of these emissions. Section 112(c)(6) requires a list of categories and subcategories of HAP sources subject to standards that account for not less than 90% of the aggregate emission of each pollutant. Although these new requirements do not include specific provisions requiring the compilation of HAP emissions inventories, they do introduce the need for such inventories in order to carry out the mandated statutes.

Section 112(k)(3) of the Act mandates that we develop a strategy to control emissions of HAPs from area sources in urban areas, and that the strategy achieve a reduction in the incidence of cancer attributable to exposure to HAPs emitted by stationary sources of not less than 75%, considering control of emissions from all stationary sources, as well as a substantial reduction in public health risks posed by HAPs from area sources. These mandated risk reductions are to be achieved by taking into account all emission control measures implemented by the Administrator or by the States under this or any other laws. A reliable HAP emission inventory covering all stationary sources of HAPs, including point and area sources, will be important in developing the mandated strategy and demonstrating that the strategy achieves the mandated risk reductions. It would be virtually impossible for us to identify and estimate HAP-specific emission reductions from all the federal and State rules that might result in HAP emission reductions. Therefore, we believe development of the strategy and assessment of progress in achieving the strategic goals requires that we develop and periodically update a HAP emission inventory. As presented in a recent Federal Register notice on the National Air Toxics Program: The Integrated Urban Strategy (64 FR 38706), we have designed an assessment approach that depends upon a reliable and periodically updated HAP emission inventory as a critical element in the assessments that support the development and evaluation of our urban strategy.

In addition to the Act requirements, the Government Performance and Results Act (GPRA) provides new emphasis on the need for HAP emission inventories, assessment of emissions reductions, and resulting reductions in risk. The GPRA, enacted in 1993, requires federal agencies to establish standards measuring their performance and effectiveness. It is the primary legislative mandate that requires agencies to set strategic goals, measure performance, and report on the degree to which goals are met.

For the EPA's air toxics program, the initial goal, by 2010, is to reduce air toxic emissions by 75% from 1993 levels to significantly reduce the risk to Americans of cancer and other serious adverse health effects caused by airborne toxics.

The EPA is working to further refine this goal so that in the future the air toxics program will protect human health and the environment by reducing the risks from air toxic emissions, particularly focusing on populations and areas disproportionately impacted which include, for example, urban areas, children at risk, and populations whose water and food are affected by persistent, bioaccumulating toxics.

Assessing progress in reducing cumulative risk from HAPs will require EPA to move away from a focus on assessing reductions from tons per year emitted, toward a focus on estimating reductions in cancer and non-cancer risks associated with lower emissions. In general, the choice of appropriate risk characterization approaches will be influenced by both the availability of data to support exposure assessments, and the level of detail and resolution needed to support the purpose of the assessment. EPA has identified four basic approaches for various assessments to evaluate progress with the air toxics program in reducing estimated risk. While each of the approaches relies on different types of data to represent exposures, all of these approaches rely on emission inventory information. The four basic approaches are: (1) toxicity weighting of emissions or ambient concentrations; (2) comparison between ambient concentration and risk-based concentrations (RBCs); (3) comparison between estimated exposure and RBCs that may yield quantitative estimates of risk; and (4) quantitative estimates of carcinogenic risk for individuals and populations. Approaches 1 and 2 are considered hazard-based approaches, in that they lack exposure or dispersion modeling, while approaches 3 and 4 are considered risk-based approaches in that they do incorporate exposure assessments and thereby can provide quantitative risk estimates. Approaches 3 and 4 require a detailed emission inventory that includes facility-specific detail (e.g., geographic location, stack heights).

You would be required to report HAP emissions for plants emitting at least 10 tons per year of one HAP or 25 tons per year of two or more HAPs. You would be required to report the same data elements now being submitted for criteria pollutants. You would provide these new data as part of the 3-year cycle inventory.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must determine whether the regulatory action is “not significant” and therefore not subject to review by the Office of Management and Budget (OMB) and to the Executive Order's requirements. We've determined this action is “significant” and therefore does require OMB review, based on the Order's definition of a “significant” regulatory action as one that is likely to result in a rule that may do any of the following:

1. Have an annual effect on the economy of $100 million or more or materially harm the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State and local governments or communities. The ICR (EPA ICR No. 0916.09) analysis shows that the costs to implement the Rule are less than $100 million. The analysis from the ICR shows total costs including proposed new requirements and start up are about $2 million.

2. Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency. The rule will increase data consistency, thus assisting other Agencies.

3. Materially alter the budgetary effect of entitlements, grants, user fees, or loan programs or the rights and obligations of those who receive them. Grant funds have been identified to support these activities.

4. Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles in the Executive Order. This rule will establish requirements for collecting and reporting new data to EPA and for this reason is deemed to be “significant”.

The new information collection requirements in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Earlier the Office of Management and Budget approved the current information collection requirements in part 51 under the Paperwork Reduction Act and has assigned OMB control number 2060-0088 (EPA ICR No. 916.07). The Information Collection Request (ICR) document for the new information collection requirements has been prepared by EPA (ICR No. 0916.09) and a copy may be obtained from Sandy Farmer by mail at Collection Strategies Division; U.S. Environmental Protection Agency (2822); 1200 Pennsylvania Ave., NW, Washington, DC 20460, by email at farmer.sandy@epa.gov, or by calling (202) 260-2740. A copy may also be downloaded from the internet at http://www.epa.gov/icr.

Today's action revises part 51 to consolidate old reporting requirements, adds new requirements for PM 2.5 and its precursors, adds new Statewide reporting requirements for area and mobile sources and asks for comments on newly recognized reporting needs for HAPs. Data from proposed new reporting will be used to:

• Support modeling analyses,

• Project future control strategies,

• Track progress to meet requirements of the Clean Air Act,

• Calculate risk, and

• Respond to public inquiries.

If finalized, this proposed rule would contain mandatory information reporting requirements (see 40 CFR 51.001); EPA considers all information reported under this proposed rule to be in the public domain and therefore cannot be treated as confidential.

The information in the following table was summarized from ICR 0916.09 and presents the reporting burden estimates.

The results in the table are broken down into State respondents and industry respondents. Within these groups, the reporting burden is further broken down into “current requirements”,“Statewide area and mobile source reporting requirements”, “PM 2.5 reporting requirements”, and “HAP reporting requirements.” This has been done to highlight the major areas changed by the CERR and to show the impact of these changes on the estimated burden.

To simplify the discussion, only the total hours per year will be discussed, however, the other burden components are related and the discussion would be similar. The burden hours estimated for all of the emission inventory reporting requirements in place prior to this proposed rule are labeled “current” and total 6,636 hours per year. Because of the streamlining and flexibility offered by the CERR, these “current” requirements are reduced from the original burden estimate of 11,448 hours per year; a savings of 4,812 hours per year. The new reporting requirements for Statewide area and mobile source reporting adds 20,971 hours per year and the PM 2.5 reporting requirements adds 2,310 hours per year. All of these burden changes are attributable to the State agency respondents.

Because the Environmental Protection Agency is requesting comment on the advisability of requiring HAP reporting, these costs are shown separately in the table. Note that there is a burden increment for both State and industry respondents. For the States, the new HAP reporting burden would add 14,350 hours per year. For industry, 22,500 hours per year would be added.

The total burden impact of the CERR, including the HAP reporting requirements, is estimated to be 66,767 hours per year for State and industry respondents. For the States alone, this total is 44,267 hours per year. It should be noted that, of this State total of 44,267 hours per year, approximately 20,000 hours per year are associated with start-up costs that will no longer be incurred after the first three years. Thus, after three years, the estimated burden becomes about 24,000 hours per year for the States and about 47,000 hours per year for the States and industry.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.

Comments are requested on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques. Send comments on the ICR to the Director, Collection Strategies Division; U.S. Environmental Protection Agency (2822); 1200 Pennsylvania Ave., NW, Washington, DC 20460; and to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th St., N.W., Washington, DC 20503, marked “Attention: Desk Officer for EPA.” Include the ICR number in any correspondence. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after May 23, 2000 a comment to OMB is best assured of having its full effect if OMB receives it by June 22, 2000. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal.

Under the Regulatory Flexibility Act we don't need to analyze this proposed regulation's flexibility because it doesn't affect small entities whose jurisdictions cover fewer than 50,000 people. Under 5 U.S.C. 605(b), I certify that this action won't significantly affect the economic well-being of a substantial number of small entities.

Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045 because it is based on technology performance and not on health or safety risks.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law No. 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g ., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This proposed rule making does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. The additional work required by this rule takes advantage of information already in the possession of reporting groups. Using existing data leverages past work and reduces the burden of this rule. This conclusion is supported by the analysis done in support of EPA ICR No. 0916.09, OMB control number 2060-0088, which shows that total costs will be about $2 million. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the UMRA.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

Under section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law, unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

If EPA complies by consulting, Executive Order 13132 requires EPA to provide to the Office of Management and Budget (OMB), in a separately identified section of the preamble to the rule, a federalism summary impact statement (FSIS). The FSIS must include a description of the extent of EPA's prior consultation with State and local officials, a summary of the nature of their concerns and the agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of State and local officials have been met. Also, when EPA transmits a draft final rule with federalism implications to OMB for review pursuant to Executive Order 12866, EPA must include a certification from the agency's Federalism Official stating that EPA has met the requirements of Executive Order 13132 in a meaningful and timely manner.

EPA has concluded that this proposed rule will have federalism implications. This is based on the new requirements proposed by this rule that States will now have to report their emissions Statewide and will have to report PM 2.5 and PM 2.5 precursor emissions. Moreover, it also may impose substantial direct compliance costs on State or local governments, and the Federal government will not provide the funds necessary to pay those costs. Accordingly, EPA provides the following FSIS as required by section 6(b) of Executive Order 13132.

EPA convened a Work Group that included representatives from three States (CA, NJ, TX) in addition to EPA representatives. This Work Group met via conference calls over a period of about a year and a half beginning in early 1997. In addition, EPA maintained an active dialog with a larger number of States through the State and Territorial Air Pollution Program Administrators (STAPPA) and the Association of Local Air Pollution Control Officials (ALAPCO). The STAPPA/ALAPCO coordination involved two forums: 1. The Standing Air Emissions Work Group (SAEWG) and 2. The STAPPA/ALAPCO Emissions and Modeling committee. The coordination with the States through the STAPPA/ALAPCO process will continue throughout this rule making process. There is considerable support for this rule by the States. The States like having all of the emission inventory reporting requirements updated and in one consolidated rule. However, two principal concerns were raised by the States: 1. Does EPA have authority to collect HAP data?, and 2. Will the rule limit the States' ability to collect emission inventory data beyond the requirements of the rule? EPA has addressed both of these concerns. The first concern has been addressed by removing the HAP reporting requirements from the rule. Instead, these requirements are discussed in the preamble and EPA is requesting comments. The second concern was addressed by the nature of the rule. The rule only specifies information that should be reported to EPA. It does not limit the States from collecting whatever data they deem necessary for their emission inventory programs.

EPA consulted with State and local officials early in the process of developing the proposed regulation to permit them to have meaningful and timely input into its development. For the reasons discussed under the FSIS, EPA believes that it has complied with the requirements of Executive Order 13132.

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

Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

For the reasons stated in the preamble, title 40, chapter I, of the Code of Federal Regulations is proposed to be amended as follows:

This proposal addresses the South Coast Air Quality Management District (SCAQMD) adopted Rule 1109, Emissions of Oxides of Nitrogen from Process Heaters and Boilers in Petroleum Refineries. In the Rules and Regulations section of this Federal Register , we are removing our previous limited approval and limited disapproval of this local rule in a direct final action without prior proposal because we believe this removal is not controversial. If we receive adverse comments, however, we will publish a timely withdrawal of the direct final rule removal and address the comments in subsequent action based on this proposed rule. We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action.

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

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

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

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

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

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

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

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

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

The EPA believes that VCS are inapplicable to this action. Today's proposed action does not require the public to perform activities conducive to the use of VCS.

In a Further Notice, 64 FR 7763 (February 16, 1999), in this proceeding released on December 23, 1998, the Commission sought comment on three proposals to address “soft slamming” and carrier identification problems arising from the shared use of carrier identification codes (CICs) by facilities-based carriers and switchless resellers of their services. The first proposal—requiring resellers to obtain their own CICs—garnered both strong support and opposition among commenters. Supporters view it as a cost-effective and administratively simple solution to the problems identified by the Commission, whereas opponents raise a number of concerns regarding its potential impact on carriers. In order to focus the record, we invite interested parties to refresh the record and to submit additional comments on a number of specific issues regarding the proposal that resellers obtain their own CICs.

First, we seek comment on what it would cost resellers to purchase translations access alone, as distinguished from Feature Group D access, and on whether the Commission should require that this functionality be offered separately. We encourage commenters to provide specific estimates of costs on both a per-LATA and a nationwide basis.

Second, we request information on whether there are functionally-equivalent services that, in conjunction with elimination of the current NANPA requirement that carriers must purchase Feature Group D access to obtain a CIC, would make it possible for switchless resellers to use CICs without also purchasing translations access directly. If so, can and should the Commission require the purchase of such services by underlying carriers? To what extent are underlying carriers and resellers already taking advantage of any such services, and how are the costs allocated between them? What are the potential drawbacks of such an approach?

Third, we request additional comment on the network, operations support systems, and/or other modifications that underlying carriers and LECs would have to make to accommodate the use of switchless reseller CICs, the likely costs of any such modifications, and the time required to carry them out. We seek comment on whether the Commission should require any such modifications if it adopts the proposed CIC requirement, or whether market incentives are sufficient to encourage carriers to make them of their own accord. Again, we encourage commenters to submit empirical data with their comments, and to provide specific estimates of costs on both a per-LATA and a nationwide basis.

Fourth, we seek additional comment on whether the proposed CIC requirement would be affordable for switchless resellers. We seek comment on whether there are specific measures that would mitigate the financial burden of the proposed CIC requirement on switchless resellers. We also ask commenters to address whether the subject proposal would create additional competitive benefits or disadvantages for resellers, such as giving them greater parity with facilities-based carriers in the timing of customer access to long distance services, or making it more expensive and time-consuming for them to change underlying carriers.

Fifth, we request additional comment on the specific dimensions of soft slamming and the carrier identification problems involving resellers identified in the Further Notice. In particular, we request commenters to address—and to submit empirical data, to the greatest extent possible—concerning the percentage of slamming complaints that involve soft slams and the percentage that involve consumers whose preferred carrier freeze protections have been bypassed.

Finally, we seek additional comment on whether this proposal would create a significant threat of CIC exhaustion, and whether modifications to existing Commission policy restricting CIC assignments may be necessary to accommodate the assignment of CICs to resellers.

This will continue to be a permit-but-disclose proceeding for purposes of the Commission's ex parte rules. Pursuant to § 1.1200 and § 1.1206 of the Commission's rules, interested parties may file supplemental filings on or before June 6, 2000, and replies to supplemental filings on or before June 13, 2000. Rules pertaining to oral and written ex parte presentations in permit-but-disclose proceedings are set forth in § 1.1206(b) of the Commission's rules. Such filings may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings , 63 FR 24121 (May 1, 1998).

Filings submitted through the ECFS can be sent as an electronic file via the Internet to <http://www.fcc.gov/e-file/ecfs.html>. Only one copy of an electronic submission must be filed. In completing the transmittal screen, commenters should include their full name, Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit electronic filings by Internet e-mail. To receive e-mail filing instructions, commenters should send an e-mail to ecfs@fcc.gov, and should include the following words in the body of the message, “get form <your e-mail address.” A sample form and directions will be sent in reply.

Parties who choose to file by paper must file an original and four copies of each filing with the Commission's Secretary, Magalie Roman Salas, Office of the Secretary, Federal Communications Commission, 445 12th Street, S.W., Washington, D.C. 20554. Parties also must send a paper copy of their filings to Sheryl Todd, Accounting Policy Division, Common Carrier Bureau, Federal Communications Commission, 445 Twelfth Street S.W., Room 5-B540, Washington, D.C. 20554. In addition, parties filing supplemental filings must send diskette copies to the Commission's copy contractor, International Transcription Service, Inc., 1231 20th Street, N.W., Washington, D.C. 20037.

The full text of this document is available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW, Room CY-A257, Washington, DC, 20554. This document may also be purchased from the Commission's copy contractor, International Transcription Service, Inc. (ITS), 1231 20th Street, NW, Washington, DC 20036, telephone 202-857-3800, facsimile 202-857-3805.

The gopher frog ( Rana capito ) is a member of the large cosmopolitan family, Ranidae (“true frogs”). The genus Rana is the only North American representative of this family. We define the Mississippi gopher frog distinct population segment as those populations of gopher frogs in the lower coastal plain ranging from the Mississippi River in Louisiana to the Mobile River delta of Alabama. Goin and Netting (1940) described frogs from this geographic range as a distinct species of gopher frog, Rana sevosa . The taxonomic history of gopher frogs is complex (summary in Altig and Lohoefener 1983). Subsequent to the original description by Goin and Netting, frogs of this population segment were considered subspecies of Rana capito (gopher frog) ( R. c. sevosa ) (Wright and Wright 1942) and later subspecies of R. areolata (crayfish frog) ( R. a. sevosa ) (Viosca 1949). In 1991, Collins challenged the taxonomic arrangement that lumped crayfish frogs and gopher frogs together as one species and recommended their separation based on biogeographical grounds. This arrangement was followed by Conant and Collins (1991), who again recognized the name R. c. sevosa . Wright and Wright (1942) first used the common name of “dusky gopher frog” for this subspecies, and it has been used in subsequent publications. The range of the subspecies, as presently described, also extends to the Gulf Coast of western Florida and adjacent Alabama (Conant and Collins 1991).

Young (1997) conducted the first comprehensive biochemical analysis of the relationships between gopher frogs and crayfish frogs and among subspecies of gopher frogs. She used allozyme electrophoresis (an assay (examination) of gene products) to examine allelic (genetic) differences between and among populations. Allozyme data have been used extensively to investigate the evolution of genetic relationships among related species. Young found strong support for the species designations R. areolata (crayfish frogs) and R. capito (gopher frogs). Gopher and crayfish frogs varied from each other by fixed differences at four loci (specific locations on a gene). In addition, she found that populations of gopher frogs from Harrison County, Mississippi, were genetically distinct from other populations of gopher frogs east of the Mobile River drainage in Alabama. Young analyzed tissue from gopher frogs across the range of the species including populations in Mississippi, Alabama, Georgia, Florida, and North Carolina. Although Mississippi gopher frogs showed a fixed difference at only a single locus (site for a specific gene on a chromosome) from all other gopher frogs, this difference is considered by many taxonomists to be significant enough to warrant elevation of the frog to its own species (B. Crother, Southern Louisiana University, pers. comm. 1999). No other specific taxonomic divisions could be determined among the remaining populations of gopher frogs sampled. Since Harrison County is within the range of the original specimens used to describe R. sevosa , Young recommended the resurrection of R. sevosa as a distinct species. A manuscript summarizing her findings has been submitted for publication (Young and Crother, unpublished manuscript). If her recommendations are accepted by the herpetological scientific community, we will reflect this taxonomic change in subsequent publications in the Federal Register . Researchers have recommended “Mississippi gopher frog” as the common name for this population segment to distinguish it from the other populations of gopher frogs further east (R. Seigel, pers. comm. 1998).

The Mississippi gopher frog has a stubby appearance due to its short, plump body, comparatively large head, and relatively short legs (Conant and Collins 1991). The coloration of its back is dark and varies in individual frogs. It ranges from an almost uniform black to a pattern of reddish brown or dark brown spots on a ground color of gray or brown (Goin and Netting 1940). Warts densely cover the back. The belly is thickly covered with dark spots and dusky markings from chin to mid-body (Goin and Netting 1940, Conant and Collins 1991). Males are distinguished from females by their smaller size, enlarged thumbs, and paired vocal sacs on either side of the throat (Godley 1992). Richter and Seigel (1998b) reported a mean snout-vent length of 67.7 millimeters (mm) (2.7 inches (in)) for males and 79.3 mm (3.2 in) for females in the extant population. Mississippi gopher frog tadpoles are presently indistinguishable from those of leopard frogs and other gopher frogs (R. Altig, Mississippi State University, pers. comm. 1999).

Mississippi gopher frog habitat includes both upland sandy habitats historically forested with longleaf pine and isolated temporary wetland breeding sites embedded within the forested landscape. Frequent fires are necessary to maintain the open canopy and ground cover vegetation of their aquatic and terrestrial habitat.

Adult and subadult Mississippi gopher frogs spend the majority of their lives underground. They use active and abandoned gopher tortoise ( Gopherus polyphemus ) burrows, abandoned mammal burrows, and holes in and under old stumps as refugia (Allen 1932; LaClaire, pers. obs. 1996; Richter and Seigel 1998a). Gopher tortoise burrows likely represent preferred underground habitats. In Florida, Godley (1992) reported that the closely related Florida gopher frog was known only from sites that supported gopher tortoises. The remaining Mississippi gopher frog population occurs in an area presently lacking gopher tortoises, most likely as a result of habitat degradation. An abandoned tortoise burrow occurs approximately 0.8 kilometers (km) (0.5 miles (mi)) from the breeding pond, and an active burrow was found within 1.6 km (1 mi) of the site in 1992 (T. Mann, Mississippi Department of Wildlife, Fisheries and Parks, pers. comm. 1999).

Gopher frog breeding sites are isolated ponds (not connected to any other water body) that dry completely on a cyclic basis. Substantial winter rains are needed to ensure that ponds are filled sufficiently to allow hatching, development, and metamorphosis of larvae. The timing and frequency of rainfall are critical to the successful reproduction and recruitment of Mississippi gopher frogs.

Today, only a single breeding pond is known for the Mississippi gopher frog. It is located in Harrison County, Mississippi. Adult frogs move to this wetland breeding site during heavy rain events, usually from January to late March (Richter and Seigel 1998b). The breeding pond is approximately 1.5 hectares (3.8 acres) when filled. It attains a maximum depth of 1.1 m (3.6 ft). The pond is hard-bottomed, has an open canopy, and contains emergent and submergent vegetation. Female Mississippi gopher frogs attach their eggs to the rigid vertical stems of emergent vegetation (Young 1997, Richter and Seigel 1998a, 1998b). The pond typically dries in early to mid-summer, but on occasion has remained wet until early fall (G. Johnson, U.S. Forest Service, pers. comm. 1993; Young 1997; Richter and Seigel 1998b). As many as 20 amphibian species (18 frogs and 2 salamanders) are known to breed at the site (G. Johnson, pers. comm. 1993). Bailey (1990) and Palis (1998) found similar habitat attributes in breeding ponds of the closely related gopher frogs in Alabama and Florida.

Adult Mississippi gopher frogs leave the pond site after breeding during major rainfall events. Adults of both sexes use specific migratory corridors when exiting the breeding pond (Richter and Seigel 1998b). Movements away from the pond are slightly east of due north. Young (1997) and Richter and Seigel (1998a) tracked a total of 13 frogs using radio transmitters. The farthest movement recorded was 268 m (879 ft) by a frog tracked for 88 days from its exit of the breeding site. In Florida, gopher frogs have been found 2 km (1.2 mi) from their breeding sites (Carr 1940, Franz et al. 1988). It is unclear if the distances recorded for the Mississippi gopher frogs were typical; the tracking periods represented only a fraction of their yearly life cycle. Movements corresponded with major rain events. However, dry conditions prevailed during most of the two study periods. In fact, the frogs in Richter and Seigel's study moved during only one 24-hour period, which was associated with a weather event. Another compounding factor was the clearcut timber harvest in 1994 of a site adjacent to the breeding pond. Migratory corridors and available habitat were eliminated by the forestry operation. In 1996, two frogs were tracked to the property line delineating the clearcut, and they did not move from their burrows during the remainder of the study (Richter and Seigel 1997).

Amphibians need to maintain moist skin for respiration (breathing) and osmoregulation (controlling the amounts of water and salts in their bodies) (Duellman and Trueb 1986). Since they disperse from their aquatic breeding sites to the uplands where they live as adults, desiccation (drying out) can be a limiting factor in their movements. Thus, it is important that areas connecting their wetland and terrestrial habitats are protected in order to provide cover and appropriate moisture regimes during their migration.

It is likely that, given appropriate habitat, Mississippi gopher frogs are long-lived. The longevity record for a captive close relative, the Carolina gopher frog ( R. capito capito ), is 9 years, 1 month (Snider and Bowler 1992). However, overall low rates of recapture at the extant breeding pond suggest low adult survival in the Mississippi gopher frog population (Richter and Seigel 1998b).

Historical records for the Mississippi gopher frog exist for two or possibly three parishes in Louisiana, six counties in Mississippi, and one county in Alabama. Researchers conducting numerous surveys have been unable to document the continuing existence of the Mississippi gopher frog in Louisiana (Seigel and Doody 1992, Thomas 1996) or in Alabama (Bailey 1992, 1994). The last observation of a gopher frog in Louisiana was in 1967 (Gary Lester, Louisiana Natural Heritage Program, pers. comm. 1991). In Alabama, it was last seen in 1922 (Bailey 1994).

Historical records for the Mississippi gopher frog are limited. We have compiled 35 historical records—1 in Alabama, 14 in Louisiana, and 20 in Mississippi. Historical records are defined as those localities where gopher frogs were found prior to 1990. No new localities for the frog have been found since 1988. Localities are sites identified from specimens captured or heard calling during sampling of potential breeding sites or by surveying highway crossings when individuals were on their way to or from breeding sites. Of the 35 historical records, 24 provided data that could be used to approximate the location of the original site.

Habitat degradation is the primary factor in the loss of gopher frog populations in Alabama, Louisiana, and Mississippi. Bailey (1994) visited the historical Alabama locality in 1993. The habitat had been developed as a residential area, and was no longer suitable for the gopher frog. Seigel and Doody (1992) and Thomas (1996) surveyed historical sites in Louisiana and searched for other potential sites that might be occupied by gopher frogs. They also found that longleaf pine forests had been severely degraded. The historical breeding and upland habitats had changed as a result of urbanization and/or conversion of forest to pine plantation. For example, they found three historical breeding sites that had been extensively altered. One had been made a permanent pond in a residential backyard. Two other ponds had been extensively altered by bedding, clearing, and nutrient loading during conversion of the surrounding habitat to pine plantation. Both Seigel and Doody (1992) and Thomas (1996) were unsuccessful at finding any Mississippi gopher frogs in Louisiana.

Crawford (1988) surveyed 42 ponds in 6 Mississippi counties in 1987 and 1988. He attempted to relocate all of the State's historical localities for the gopher frog. He found that habitat in the vicinity of historical localities had been altered by conversion of natural forest to agriculture and pine plantations. Urbanization was a factor in the loss of at least three breeding ponds. The character of relocated historical breeding ponds had been changed from open-canopy, temporary ponds with clear water and hard bottoms to muddy, more permanent ponds with a closed canopy (G. Johnson, pers. comm. 1999). No appropriate habitat for the Mississippi gopher frog could be found near any of the localities (G. Johnson, pers. comm. 1999). Crawford (1988) also used aerial maps to identify potential breeding sites. In many cases, ponds identified on these maps no longer existed due to land use changes. However, he was able to verify the presence of the species at four new sites in Harrison County, Mississippi. At three of these four sites, only one individual was observed. Kuss (1988) surveyed 60 ponds in southern Mississippi for the flatwoods salamander ( Ambystoma cingulatum ). He did not encounter any gopher frogs during the surveys. Subsequent to these studies, surveys have documented the continued existence of only one population in Mississippi. This population breeds at a pond located in the DeSoto National Forest in Harrison County. Surveyors working in Mississippi during the 1990s have been unable to find the species at any other sites (R. Jones, Mississippi Department of Wildlife, Fisheries and Parks, pers. comm. 1998; G. Johnson, pers. comm. 1999). Although Allen (1932) found gopher frogs to be common in the coastal counties of Mississippi earlier in the century, today R. Seigel (pers. comm. 1998) estimates the extant Mississippi gopher frog population to be only 100 adult frogs at a single site.

The extensive habitat alteration found during surveys of historical gopher frog localities in Alabama, Louisiana, and Mississippi resulted from the loss of virtually all of the natural longleaf pine forest in these States. Presettlement longleaf pine forests were the dominant forest type of the southeastern coastal plain. Today, less than 2 percent of these forests remain (Ware et al . 1993). Second growth longleaf pine forests in the vicinity of historical Mississippi gopher frog breeding sites were clearcut extensively in the mid-1950s and then again in the 1980s and 1990s. Longleaf pine forest habitat was replaced with dense pine plantations, agriculture, and urban areas. Habitat degradation has occurred as a result of alterations in the soil horizon (layering of different soil types), forest litter, herbaceous community, and occurrence of downed trees and stumps that Mississippi gopher frogs use as refugia. Fire suppression has further degraded the habitat. The hydrology of many isolated temporary wetlands, required as breeding sites for the Mississippi gopher frog, has been altered. In addition, these same factors have resulted in the decline of the gopher tortoise, whose burrows are most likely the preferred habitat for adult gopher frogs. As a result of these habitat changes, both the uplands and the pond basins previously occupied by the Mississippi gopher frog have become unsuitable.

Recent genetic analysis suggested reevaluation of the taxonomy of gopher frogs ( Rana capito ) is necessary (Young 1997). The analysis of the relationships between gopher frogs and crayfish frogs, and among subspecies of gopher frogs, failed to support the current taxonomy for gopher frogs at the subspecific level. However, the research did support taxonomic distinction of the Mississippi gopher frog from all other gopher frogs east of the Mobile River delta, including other dusky gopher frogs. Young and Crother (unpublished manuscript) concluded that the Mississippi gopher frog population segment should be resurrected to species status.

The biological evidence supports recognition of the Mississippi gopher frog as a distinct vertebrate population segment for purposes of listing, as defined in our February 7, 1996, Policy Regarding the Recognition of Distinct Vertebrate Population Segments (61 FR 4722). The definition of “species” in section 3(16) of the Act includes “any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” For a population to be listed under the Act as a distinct vertebrate population segment, three elements are considered—(1) the discreteness of the population segment in relation to the remainder of the species to which it belongs; (2) the significance of the population segment to the species to which it belongs; and (3) the population segment's conservation status in relation to the Act's standards for listing ( i.e., is the population segment endangered or threatened?).

Habitat of the lower Gulf Coastal Plain from the Mississippi River to the Mobile River delta contains the westernmost subpopulation of dusky gopher frogs. This population segment is discrete because it is geographically segregated from other gopher frogs by a large gap (approximately 200 km (125 mi)) of unoccupied habitat and the Mobile River delta. Consequently, this subpopulation does not mix with other dusky gopher frogs.

Young (1997) presented evidence that the Mississippi gopher frog distinct population segment is biologically and ecologically significant due to genetic characteristics different from the species as a whole (see discussion in Background section). The habitat occupied by the Mississippi gopher frog is disjunct from habitat occupied by other populations of the dusky gopher frog. No other populations of gopher frogs remain in Louisiana, Mississippi, or Alabama west of the Mobile River drainage. As a result, loss of the Mississippi gopher frog population segment would result in a substantial modification of the species' range.

In our December 30, 1982, Notice of Review, we designated the dusky gopher frog (designation Rana areolata sevosa ) as a category 2 candidate and solicited status information (47 FR 58454). Category 2 candidates were those taxa for which we had information indicating that proposing to list as endangered or threatened was possibly appropriate, but for which sufficient data on biological vulnerability and threats were not currently available to support a proposed rule. Category 1 taxa were those taxa for which we had sufficient information on biological vulnerability and threats on file to support issuance of proposed listing rules. In our September 18, 1985 (50 FR 37958), and January 6, 1989 (54 FR 554), Notices of Review, we retained the dusky gopher frog in category 2. We identified the dusky gopher frog as a category 1 candidate species in our November 21, 1991 (56 FR 58804), and November 15, 1994 (59 FR 58982), Notices of Review. Beginning with our February 28, 1996, Notice of Review (61 FR 235), we discontinued the designation of multiple categories of candidates, and we now consider only taxa that meet the definition of former category 1 taxa as candidates for listing. We also removed Rana areolata sevosa from candidate status based on the need for additional information to support a listing proposal. We have recently completed an analysis of newly available information from current studies and determined that listing the Mississippi gopher frog distinct population segment of the dusky gopher frog is warranted. We elevated the Mississippi gopher frog to candidate status in our October 25, 1999, Notice of Review (64 FR 57534).

The processing of this proposed 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 lists of endangered and threatened wildlife and plants. Third priority is processing new proposals to add species to the lists. The processing of administrative petition findings (petitions filed under section 4 of the Act) is the fourth priority. The processing of critical habitat determinations (prudency and determinability decisions) and proposed or final designations of critical habitat will no longer be subject to prioritization under the Listing Priority Guidance. This proposed rule is a Priority 3 action and is being completed in accordance with the current Listing Priority Guidance.

Section 4 of the Act and regulations (50 CFR part 424) issued to implement the listing provisions of the Act set forth the procedures for adding species to the Federal lists. We may determine a species to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1). These factors and their application to the Mississippi gopher frog distinct population segment ( Rana capito sevosa ) are as follows:

The range of the Mississippi gopher frog has been reduced as a result of habitat destruction and modification (see “Background” section). Historically, the Mississippi gopher frog occurred in at least nine counties or parishes in the States of Alabama, Mississippi, and Louisiana. Today, it is known from only one site in Harrison County, Mississippi.

The Mississippi Gulf Coast has experienced a recent increase in residential development. The land 200 m (656 ft) immediately north of the only known Mississippi gopher frog breeding site is slated for development, including a 20,000-unit retirement community, a sewage treatment plant, and several golf courses (L. Lewis, Brown and Mitchell, Inc., pers. comm. 1999). The sewage treatment plant and one golf course are currently planned immediately north of the gopher frog pond. Richter and Seigel (1998b) reported that the majority of gopher frogs leaving the breeding pond moved in the general direction of the development site. Two frogs, tracked using transmitters, were observed at the fence line delineating the DeSoto National Forest property boundary from the lands currently slated for development (Richter and Seigel 1998a). It seems likely that Mississippi gopher frogs occupy, or in the very recent past have occupied, this site. Residential development of the site would likely destroy its suitability for the frog.

Due to the close proximity of this development to the Mississippi gopher frog pond, a number of indirect impacts are possible. The most severe is the potential alteration of hydrology (physical factors that influence the movement of water into and out of a wetland) in the local region. The breeding pond of the Mississippi gopher frog must maintain its isolation and cycle of filling and drying, or it will no longer be suitable habitat. Wetland dredging and filling will be required in order to site houses and build the golf course and sewage treatment plant. The consequences of these proposed hydrological alterations cannot be estimated without further study. However, the only known breeding pond for the Mississippi gopher frog would undoubtedly be affected in some way (W. Oakley, U.S. Geological Survey, pers. comm. 1999).

A number of scenarios are possible due to the proximity of a proposed regional sewage treatment plant within 1.6 km (1 mi) of the Mississippi gopher frog pond. If sewage lagoons are used, it is possible they could overflow and flood gopher frog habitat. Such conditions of high water periodically result from the tropical storms that occur along the Mississippi Gulf Coast. Another potential effect is the lowering or raising of the groundwater table. Changes in the water table will alter the hydroperiod of the Mississippi gopher frog breeding pond and reduce its habitat suitability.

A dam has been proposed for the Biloxi River within 1.6 km (1 mi) of the Mississippi gopher frog pond. The reservoir plan involves a dam on the Biloxi River that would flood approximately 567 hectares (1,400 acres), primarily within the boundaries of the DeSoto National Forest ( Sun Herald, Gulfport, Mississippi, May 4, 1999). The impoundment created by this dam would likely alter the temporary nature of the breeding site and flood occupied upland habitat used by adult frogs and/or potentially unoccupied upland habitat.

The highway expansion, both ongoing and planned, in the vicinity of the existing Mississippi gopher frog pond will fragment the available longleaf pine habitat (see Factor E). Urbanization will expand along these highway corridors and further reduce available habitat for the frog. Highway construction may also alter the existing hydrology of the area through creation of drainage ditches, filling of wetlands, and sedimentation.

The remaining breeding pond for the Mississippi gopher frog is located in the DeSoto National Forest. Silviculture, including timber sales with associated clearcutting, is currently the primary activity in this area. Inappropriate timber management could alter the suitability of the Mississippi gopher frog's remaining habitat (see “Background” section). In 1994, habitat on private land 200 m (656 ft) north of the breeding pond, now slated for residential development, was clearcut. The behavior of two Mississippi gopher frogs tracked from their breeding site may be indicative of the negative effects of clearcutting. The two frogs were followed to a burrow at the boundary of the clearcut (Richter and Seigel 1998a). They never left this location during the life of the transmitters. The burrow and stump holes used by migrating frogs on the clearcut site were likely altered. In addition, the site had no overstory and would represent a desert to moisture-requiring frogs. Although the effects of the clearcut on the population are unknown, it appears likely that, at least temporarily, the habitat was unsuitable for the frogs.

Historical gopher frog breeding sites have been degraded by roads that pass through or are adjacent to ponds. Erosion of unpaved roads adjacent to breeding sites may result in an influx of sediment from surrounding uplands during rainstorms. The hydroperiod (period during which a wetland holds water) at the Mississippi gopher frog breeding site has been negatively affected by a poorly maintained logging road that runs within 20 m (66 ft) of the pond (R. Seigel, pers. comm. 1998).

The open canopy and flat, unforested bottom of the Mississippi gopher frog breeding pond represent an alluring site for dumping unwanted trash and riding off-road vehicles (ORV). Many temporary ponds throughout the southeast have been degraded as a result of garbage dumping (LaClaire, pers. obs. 1994). ORVs can cause direct mortality of gopher frog tadpoles and adults (J. Jensen, Georgia Department of Natural Resources, pers. comm. 1996) as well as alter the quality of a breeding site. ORVs alter the contours of the pond floor, eliminate herbaceous vegetation, and can alter the hydrology of the site (LaClaire, pers. obs. 1995). Loss of herbaceous vegetation caused by ORVs could also discourage gopher frog reproduction, since egg masses are attached to stems of herbaceous vegetation (Young 1997; Richter and Seigel 1998a, 1998b). ORV tracks have been documented within the Mississippi gopher frog breeding site (G. Johnson, pers. comm. 1994). In 1994, an area of the DeSoto National Forest within 2.4 km (1.5 mi) of the existing breeding pond was temporarily closed due to accumulation of trash, soil erosion and water quality degradation caused by ORVs, damage to endangered and sensitive plants and animals, and other vandalism (K. Godwin, U.S. Forest Service, pers. comm. 1994). ORV use will likely increase in the vicinity of the pond if the proposed housing development occurs adjacent to the site.

Direct take of Mississippi gopher frogs for commercial, recreational, scientific, or educational purposes is not currently a threat. However, listing the Mississippi gopher frog may make it more attractive to collectors through recognition of its rarity. In addition, the life history and ecology of Mississippi gopher frogs make them vulnerable to overcollecting, as well as vandalism. Only a single breeding pond remains for this frog. At predictable times of the year, all breeding adults congregate at this one site to breed.

Disease is not known to be a factor in the decline of the Mississippi gopher frog. However, predation may be a threat. Richter and Seigel (1998a) reported that approximately 44 percent of all eggs at the existing breeding site were lost in 1997 prior to hatching. An undetermined amount of the egg mortality was due to predation by caddisfly larvae (Order Trichoptera, Family Phryganeidae) on the egg masses. Caddisfly larvae were not observed on egg masses in the previous year of the study. The effect on the Mississippi gopher frog population is unknown. However, if mortality of this magnitude is a result of predation, it is a cause for concern in such an extremely small and isolated population.

Predation from fish probably contributed to the loss of historic populations. Temporary ponds altered to form more permanent bodies of water and stocked with fish are no longer suitable breeding sites. Fish may have also entered breeding sites through the connection of drainage ditches and firebreaks to pond basins. The Mississippi gopher frog is adapted to temporary wetlands, and its larvae cannot survive the heavy predation of bass and sunfish commonly used to stock ponds. One historical location in Louisiana was destroyed in part because it has become a permanent pond with fish (Thomas 1996). In Mississippi, a calling male was discovered in 1987 at a site that has since been converted to a fish pond (T. Mann, pers. comm. 1998). No gopher frogs have been reported subsequently at this site, which is no longer considered suitable breeding habitat.

Louisiana has no protective legislation for the Mississippi gopher frog. Alabama protects all gopher frogs as nongame species (J. Woehr, Alabama Department of Conservation and Natural Resources, pers. comm. 1994). The Mississippi gopher frog is listed as endangered in Mississippi (Mississippi Department of Wildlife, Fisheries and Parks 1992), and both Mississippi and Alabama provide protection against collecting of the species. However, this legislation does nothing to alleviate the habitat loss that has caused the decline of the species. The only known breeding site for the Mississippi gopher frog is on U.S. Forest Service land. As a result, there has been a concerted effort to encourage the U.S. Forest Service to manage the site for the frog. Although the U.S. Forest Service has an obligation to ensure their land management activities protect fish and wildlife (National Forest Management Act), forest management is often limited by existing funding. Other avenues of funding become available to the U.S. Forest Service once a species is federally listed.

Fire is needed to maintain the natural longleaf pine community. Ecologists consider fire suppression a primary reason for the degradation of the remaining longleaf pine acreage in the southeast (Noss 1988, Ware et al. 1993). Fire suppression has reduced the quality of the terrestrial and aquatic habitat for the Mississippi gopher frog. Canopy closure from fire suppression alters the forest floor vegetation and threatens the open, herbaceous character typical of gopher frog breeding ponds (Kirkman 1995, LaClaire 1995). In addition, fire causes the release of nutrients bound in plant material. This release of nutrients results in a flush of primary productivity that is important to the herbivorous gopher frog tadpoles. Fire suppression has probably negatively impacted all of the historical Mississippi gopher frog sites. At this time, fire is the only known management tool that will maintain the existing breeding pond as suitable habitat.

Between 1991 and 1998, the U.S. Forest Service conducted periodic growing-season burns of the forest compartment surrounding the Mississippi gopher frog breeding pond. These burns improved habitat conditions, but their frequency and extent have been insufficient. For example, the interior of the breeding site has been burned only once since 1991. This frequency of burning is too low to prevent woody encroachment and, therefore, too low to enhance herbaceous growth. Residential development and road construction in the vicinity of the breeding pond will create increased concerns about, and likely reduce the use of, fire as a management tool.

Habitat fragmentation of the longleaf pine ecosystem, resulting from habitat conversion, threatens the survival of the single remaining Mississippi gopher frog population. Studies have shown that the loss of small, fragmented populations is common, and recolonization is critical for their regional survival (Fahrig and Merriam 1994, Burkey 1995). As patches of available habitat become separated beyond the dispersal range of a species, populations are more sensitive to genetic, demographic, and environmental variability and may be unable to recover (Gilpin 1987, Sjogren 1991, Blaustein et al. 1994). This scenario describes threats to the Mississippi gopher frog. Five historical Mississippi gopher frog localities exist within a 19.2-km (12-mi) radius of the remaining site. Highways have fragmented this area and contributed to habitat degradation. The most recent records of frogs at these locales was in the late 1980s. The planned construction of highways within 5 km (3.1 mi) both to the north and east of the existing Mississippi gopher frog pond will further isolate the remaining population from the two potentially restorable historical breeding sites in the DeSoto National Forest. The Biloxi River and additional residential development bound the habitat to the west and south.

Low reproductive potential may also present a threat to the Mississippi gopher frog's continued existence. Studies at the Mississippi breeding site suggest that female Mississippi gopher frogs may not breed until 2 to 3 years of age and may breed only in alternate years and/or have only a single lifetime breeding event (Richter and Seigel 1998b). In addition, survival of juvenile frogs is thought to be extremely low (Richter and Seigel 1998b).

Annual variability in rainfall influences how frequently and how long a pond is appropriate breeding habitat. Reliance on specific weather conditions results in unpredictable breeding events and reduces the likelihood that recruitment will occur every year. No larvae survived to metamorphosis in 3 out of 6 years of the reproductive study of the extant Mississippi gopher frog population (summarized in Richter and Seigel 1998b). In addition, study results indicate that only 1 year out of 6 resulted in the explosive numbers (2,488) of juveniles typical of temporary pond breeding amphibians.

The Mississippi gopher frog population is highly susceptible to genetic isolation, inbreeding, and random demographic events as a result of having only one known breeding site. Long-lasting droughts or frequent floods may negatively affect the population. Although these are natural processes, other threats, such as habitat fragmentation, habitat degradation, and low reproductive potential, may cause the population to decline to the point that it cannot recover.

Pesticides and herbicides pose a threat to amphibians such as the Mississippi gopher frog, because their permeable eggs and skin readily absorb substances from the surrounding aquatic or terrestrial environment (Duellman and Trueb 1986). Aquatic frog larvae are likely more vulnerable than adults to chemical changes in their environment. Negative effects of commonly used pesticides and herbicides on amphibian larvae include delayed metamorphosis, paralysis, reduced growth rates, and mortality (Bishop 1992, Berrill and Bertram 1997, Bridges 1999). Adult gopher frogs are predaceous and could be affected by pesticides accumulated in their invertebrate prey. If a golf course is built in the drainage area of the Mississippi gopher frog breeding pond, as proposed, the herbicides and pesticides used to maintain it would pose a potential threat to the population. In addition, runoff from chemically maintained yards and roads in the proposed residential development may contribute toxins that could threaten the frog. Herbicides may also alter the density and species composition of vegetation surrounding a breeding site and reduce the number of potential sites for egg deposition, larval development, or shelter for migrating frogs.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by the Mississippi gopher frog distinct population segment in determining to propose this rule. Based on this evaluation, the preferred action is to list the Mississippi gopher frog distinct population segment as endangered. The Act defines an endangered species as one that is in danger of extinction throughout all or a significant portion of its range. A threatened species is one that is likely to become an endangered species in the foreseeable future throughout all or a significant portion of its range. As discussed under Factor A, in spite of extensive surveys throughout the known range of the Mississippi gopher frog, only one population is known to exist. Further, residential development, new and expanding highways, increased fire suppression, and a proposed reservoir pose threats to the remaining habitat of adult gopher frogs. For these reasons, we find that the Mississippi gopher frog distinct population segment is in danger of extinction throughout all or a significant portion of its range and, therefore, endangered status is appropriate.

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.

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

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

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

The Final Listing Priority Guidance for FY 2000 (64 FR 57114) states, “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 allowed by our funding allocation for that year.” As explained in detail in the Listing Priority Guidance, our listing budget is currently insufficient to allow us to immediately complete all of the listing actions required by the Act.

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

Due to the fact that the Mississippi gopher frog is only known from one site, it is vulnerable to unrestricted collection, vandalism, or other disturbance. We are concerned that these threats might be exacerbated by the publication of critical habitat maps and further dissemination of locational information. However, at this time we do not have specific evidence for the Mississippi gopher frog 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 further increase the degree of threat of taking or other human activity above that of the listing of the species.

In the absence of a finding that critical habitat would increase threats to a species, if there are any benefits to critical habitat designation, then a prudent finding is warranted. In the case of this species, there may be some benefits to designation of critical habitat. The primary regulatory effect of critical habitat is the section 7 requirement that Federal agencies refrain from taking any action that destroys or adversely modifies critical habitat. While a critical habitat designation for habitat currently occupied by this species would not be likely to change the section 7 consultation outcome because an action that destroys or adversely modifies such critical habitat would also be likely to result in jeopardy to the species, there may be instances where section 7 consultation would be triggered only if critical habitat is designated. Examples could include unoccupied habitat or occupied habitat that may become unoccupied in the future. There may also be some educational or informational benefits to designating critical habitat. Therefore, we propose that critical habitat is prudent for the Mississippi gopher frog. However, the deferral of the critical habitat designation for the Mississippi gopher frog 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 the Mississippi gopher frog without further delay. We anticipate in FY 2000 and beyond giving higher priority to critical habitat designation, including designations deferred pursuant to the Listing Priority Guidance, such as the designation for this species, than we have in recent fiscal years.

We plan to employ a priority system for deciding which outstanding critical habitat designations should be addressed first. We will focus our efforts on those designations that will provide the most conservation benefit, taking into consideration the efficacy of critical habitat designation in addressing the threats to the species, and the magnitude and immediacy of those threats. We will make the final critical habitat determination with the final listing determination for the Mississippi gopher frog. If this final critical habitat determination is that critical habitat is prudent, we will develop a proposal to designate critical habitat for the Mississippi gopher frog as soon as feasible, considering our workload priorities.

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

Section 7(a) of the Act, as amended, requires Federal agencies to evaluate their actions with respect to any species that is listed as endangered or threatened and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) requires Federal agencies to confer informally 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 subsequently listed, 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 the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into formal consultation with us.

The Mississippi gopher frog occurs in the DeSoto National Forest, Federal land administered by the U.S. Forest Service. The U.S. Forest Service will be required to evaluate whether their activities have the potential to adversely impact the Mississippi gopher frog. Their activities that could adversely modify suitable habitat include, but are not limited to, forest management and road construction. Other Federal agencies that may be involved in authorizing, funding, or carrying out activities that may affect the Mississippi gopher frog include the Army Corps of Engineers, due to their regulation of discharges of dredged or fill material into isolated wetlands under section 404 of the Clean Water Act (CWA), nationwide permit 26 and dam construction in navigable waters under section 10 of the Rivers and Harbors Act and 404 of the CWA; the Federal Energy Regulatory Commission, due to their oversight of gas pipeline and powerline rights-of-way; and the Federal Highway Administration, if Federal funds are involved in road construction.

We have been working with the U.S. Forest Service since 1988 to protect the last remaining population of the Mississippi gopher frog. We have advised the U.S. Forest Service on protection and management needs for this species. We have supported research on the ecology and life history of this population by projects funded through our cooperative agreement with the State of Mississippi under section 6 of the Act. In addition, we have collaborated with the U.S. Forest Service on the rehabilitation of a nearby pond as a future breeding site for the frog.

The Act and its implementing regulations found at 50 CFR 17.21 set forth a series of general prohibitions and exceptions that apply to all endangered wildlife. These prohibitions, in part, make it illegal for any person subject to the jurisdiction of the United States to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these), import, export, ship in interstate commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any endangered wildlife species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to our agents and agents of 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 are or are not likely to 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 a species' range.

We believe the following activities are unlikely to result in a violation of section 9 for the Mississippi gopher frog:

(1) Possession of legally acquired Mississippi gopher frogs;

(2) Lawful hunting activities;

(3) Lawful burning of habitat where the Mississippi gopher frog is known to occur, including winter burning;

(4) Federally approved projects that involve activities such as discharge of fill material, draining, ditching, bedding, diversion or alteration of surface or ground water flow into or out of a wetland ( i.e. , due to roads, impoundments, discharge pipes, etc.), when the activity is conducted in accordance with any reasonable and prudent measures given by us in accordance with section 7 of the Act; and,

(5) Conversion of longleaf pine habitat where the Mississippi gopher frog does not occur.

We believe the following activities could potentially result in “take” of the Mississippi gopher frog:

(1) Unauthorized killing, collecting, handling, or harassing of individual Mississippi gopher frogs; this would include unauthorized use of off-road vehicles in the wetland basins of known breeding sites of the species.

(2) Possessing, selling, transporting, or shipping illegally taken Mississippi gopher frogs;

(3) Unauthorized destruction or alteration of the hydrology of the frog's wetland breeding sites. These actions would include off-site activities that alter the regional hydrology by changing the natural recharge to the below-ground aquifer, altering the groundwater table, or altering flows in stream drainages, which would impact the appropriate temporal fluctuations and/or water-holding capacity at existing breeding sites. Unauthorized actions that could alter the hydrology of breeding sites would include discharge of fill material, draining, ditching, bedding, clear-cutting within the wetland, diversion or alteration of surface or ground water flow into or out of a wetland ( i.e. , due to roads, impoundments, discharge pipes, etc.), and operation of any vehicles within the wetland; and,

(4) Discharge or dumping of toxic chemicals, silt, or other pollutants ( i.e. , sewage, oil, pesticides, and gasoline) into isolated wetlands or upland habitats supporting the species. This includes any application of terrestrial or aquatic pesticide that results in the mortality of adult frogs or tadpoles, regardless if the pesticide was applied in accordance with the labeling instructions. This includes drift from aerial applications and runoff from surface applications.

We will review other activities not identified above on a case-by-case basis to determine whether they may be likely to result in a violation of section 9 of the Act. We do not consider these lists to be exhaustive and provide them as information to the public. You should direct questions regarding whether specific activities may constitute a violation of section 9 to the Field Supervisor of our Mississippi Field Office (see ADDRESSES section).

We may issue permits to carry out otherwise prohibited activities involving endangered wildlife species under certain circumstances. Regulations governing permits are at 50 CFR 17.22. For endangered species, you may obtain permits for scientific purposes, to enhance the propagation or survival of the species, and/or for incidental take in connection with otherwise lawful activities. You may request copies of the regulations regarding listed wildlife from, and address questions about prohibitions and permits to, the U.S. Fish and Wildlife Service, 1875 Century Blvd., Suite 200, Atlanta, Georgia 30345, or telephone 404/679-7313; facsimile 404/679-7081.

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

(1) Biological, commercial trade, or other relevant data concerning any threat (or lack thereof) to this distinct population segment;

(2) The location of any additional populations of this distinct population segment;

(3) The reasons why any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act;

(4) Additional information concerning the range, distribution, and size of this distinct population segment; and

(5) Current or planned activities in the subject area and their possible impacts on this distinct population segment.

We will take into consideration your comments and any additional information received on this distinct population segment when making a final determination regarding this proposal. We will also submit the available scientific data and information to appropriate, independent specialists for review. We will summarize the opinions of these reviewers in the final decision document. The final determination may differ from this proposal based upon the information we receive.

You may request a public hearing on this proposal. Your request for a hearing must be made in writing and filed within 45 days of the date of publication of this proposal in the Federal Register . Address your request to the Field Supervisor (see ADDRESSES section).

We have determined that we do not need to prepare an Environmental Assessment, as defined under the authority of the National Environmental Policy Act of 1969, 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 new collections of information other than those already approved under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , and assigned Office of Management and Budget clearance 1018-0094. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number. For additional information concerning permit and associated requirements for endangered species, see 50 CFR 17.22.

You may request a list of all references cited in this document, as well as others, from the Mississippi Field Office (see ADDRESSES section).

Author. The primary author of this proposed rule is Linda V. LaClaire, Mississippi Field Office (see ADDRESSES section) (601/965-4900).

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