The Agricultural Marketing Act (AMA) of 1946 (7 U.S.C. 1621 et seq. ) authorizes official voluntary grading and certification on a user-fee basis of eggs, poultry, and rabbits. The AMA provides that reasonable fees be collected from users of the program services to cover, as nearly as practicable, the costs of services rendered.

The AMS regularly reviews these programs to determine if fees are adequate and if costs are reasonable. This action would amend the schedule for fees and charges for grading services rendered to the egg, poultry, and rabbit industries to reflect the costs currently associated with them.

A recent review of the current fee schedule, effective October 1, 1999, revealed that anticipated revenue will not adequately cover increasing program costs. Without a fee increase, FY 2001 revenues for grading services are projected at $23.7 million, costs are projected at $24.9 million, and trust fund balances would be $11.3 million. With a fee increase, FY 2001 revenues are projected at $24.3 million, costs are projected at $24.9 million, and trust fund balances would be $11.9 million.

Employee salaries and benefits account for approximately 81 percent of the total operating budget. A general and locality salary increase for Federal employees, ranging from 4.76 to 5.31 percent, depending on locality, became effective in January 2000 and has materially affected program costs. Another general and locality salary increase estimated at 3.7 percent is expected in January 2001. Also, from October 1999 through September 2001, salaries and fringe benefits of federally licensed State employees will have increased by about 6.7 percent.

The impact of these cost increases was determined for resident, nonresident, and fee services. To offset projected cost increases, the hourly resident and nonresident rate would be increased by approximately 4 percent and the fee rate would be increased by approximately 6 percent. The hourly rate for resident and nonresident service covers graders' salaries and benefits. The hourly rate for fee service covers graders' salaries and benefits, plus the cost of travel and supervision. The hourly rate for an appeal grading or review of a grader's decision covers the time required to perform such service. Due to changes in the number of Poultry Program offices and the resulting reduction in costs, administrative charges that cover the cost of supervision for resident and nonresident service would remain unchanged as shown in the table below.

The following table compares current fees and charges with proposed fees and charges for egg, poultry, and rabbit grading as found in 7 CFR parts 56 and 70:

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

Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), the AMS has considered the economic impact of this action on small entities. It is determined that its provisions would not have a significant economic impact on a substantial number of small entities.

There are about 400 users of Poultry Programs' grading services. These official plants can pack eggs, poultry, and rabbits in packages bearing the USDA grade shield when AMS graders are present to certify that the products meet the grade requirements as labeled. Many of these users are small entities under the criteria established by the Small Business Administration (13 CFR 121.201). These entities are under no obligation to use grading services as authorized under the Agricultural Marketing Act of 1946.

The AMS regularly reviews its user fee financed programs to determine if the fees are adequate. The most recent review determined that the existing fee schedule will not generate sufficient revenues to cover program costs while maintaining an adequate reserve balance. Without a fee increase, FY 2001 revenues for grading services are projected at $23.7 million, costs are projected at $24.9 million, and trust fund balances would be $11.3 million. With a fee increase, FY 2001 revenues are projected at $24.3 million, costs are projected at $24.9 million, and trust fund balances would be $11.9 million.

This action would raise the fees charged to users of grading services. The AMS estimates that overall, this rule would yield an additional $0.5 million during FY 2001. The hourly rate for resident and nonresident service would increase by approximately 4 percent and the fee rate would increase by approximately 6 percent. The impact of these rate changes in a poultry plant would range from less than 0.002 to 0.02 cents per pound of poultry handled. In a shell egg plant, the range would be less than 0.009 to 0.09 cents per dozen eggs handled.

This action has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of this rule.

The information collection requirements that appear in the sections to be amended by this action have been previously approved by OMB and assigned OMB Control Numbers under the Paperwork Reduction Act (44 U.S.C. Chapter 35) as follows: ?56.52(a)(4)—No. 0581-0128; and ?70.77(a)(4)—No. 0581-0127.

A thirty-day comment period is provided for interested persons to comment on this proposed rule. This period is appropriate in order to implement, as early as possible in fiscal year 2001, any fee changes adopted as a result of this rulemaking action.

For reasons set forth in the preamble, it is proposed that Title 7, Code of Federal Regulations, parts 56 and 70 be amended as follows:

This rule is issued under Marketing Agreement No. 115 and Order No. 982, both as amended (7 CFR part 982), regulating the handling of hazelnuts grown in Oregon and Washington, hereinafter referred to as the “order.” The marketing agreement and order are effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, hazelnut handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as proposed herein would be applicable to all assessable hazelnuts beginning on July 1, 2000, and continue until amended, suspended, or terminated. This rule would not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

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

This rule would increase the assessment rate established for the Board for the 2000-2001 and subsequent marketing years from $0.004 to $0.005 per pound of hazelnuts handled.

The order provides authority for the Board, with the approval of the Department, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Board are producers and handlers of hazelnuts. They are familiar with the Board's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate and budget were recommended by a mail vote. The recommendation will be discussed and reconfirmed at the Board's next scheduled public meeting. Thus, all directly affected persons will have an opportunity to participate and provide input.

For the 1997-98 and subsequent marketing years, the Board recommended, and the Department approved, an assessment rate that would continue in effect from marketing year to marketing year unless modified, suspended, or terminated by the Secretary upon recommendation and information submitted by the Board or other information available to the Secretary.

The Board, in a mail vote completed at the end of April 2000, unanimously recommended 2000-2001 expenditures of $596,293 and an assessment rate of $0.005 per pound of hazelnuts. In comparison, last year's budgeted expenditures were $568,457. The assessment rate of $0.005 is $0.001 higher than the rate currently in effect. At the current rate of $0.004 per pound and an estimated 2000-2001 hazelnut production of 50,000,000 pounds, the Board believes that the projected reserve on June 30, 2001, would not be adequate to administer the program. The increased assessment rate is expected to result in an operating reserve of $150,147 at the end of the 2000-2001 marketing year.

The major expenditures recommended by the Board for the 2000-2001 marketing year include $39,613 for personal services (salaries and benefits), $7,416 for rent, $5,000 for compliance, $23,000 for the crop estimate, $275,000 for promotion, and $182,364 for an emergency fund. Budgeted expenses for these items in 1999-2000 were $51,385, $7,308, $5,000, $21,000, $275,000, and $182,364, respectively. The Board would consider using emergency funds for authorized activities when it is reasonably certain that its estimate of assessable hazelnuts is reached. It would not be able to make this determination until December 2000, the month in which the hazelnut harvest and deliveries to handlers usually are completed.

The Board based its recommended assessment rate increase on the 2000-2001 crop estimate, the 2000-2001 marketing year expenditures estimate, as well as the current and projected balance of the operating reserve. Hazelnut shipments for the 2000-2001 marketing year are estimated at 50,000,000 pounds, which should provide $250,000 in assessment income. Income derived from handler assessments, along with interest income ($13,000) and funds from the Board's authorized reserve ($333,293), would be adequate to cover budgeted expenses. Funds in the reserve (currently $483,440) would be kept within the maximum permitted by the order (approximately one marketing year's operational expenses). Excess funds may be maintained and used by the Board until December 1 following the end of a marketing year (§ 982.62(b)). The Board shall refund to each handler upon request, or credit to the handler's account with the Board, the handler's share of such excess prior to January 1.

The proposed assessment rate would continue in effect indefinitely unless modified, suspended, or terminated by the Secretary upon recommendation and information submitted by the Board or other available information.

Although this assessment rate would be in effect for an indefinite period, the Board would continue to conduct a mail vote prior to or during each marketing year to recommend a budget of expenses and consider recommendations for modification of the assessment rate. Any mail votes would be discussed and reconfirmed at a public meeting. The dates and times of Board meetings are available from the Board or the Department. Board meetings are open to the public and interested persons may express their views at these meetings. The Department would evaluate Board recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Board's 2000-2001 budget and those for subsequent marketing years would be reviewed and, as appropriate, approved by the Department.

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

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

There are approximately 800 producers of hazelnuts in the production area and approximately 22 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts less than $500,000, and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000. Currently, about 86 percent of hazelnut handlers could be considered small businesses under SBA's definition, excluding receipts from other sources. It is estimated that virtually all hazelnut producers have annual receipts of less than $500,000, excluding receipts from other sources. Thus, the majority of handlers and producers of hazelnuts may be classified as small entities.

This rule would increase the assessment rate established for the Board and collected from handlers for the 2000-2001 and subsequent marketing years from $0.004 to $0.005 per pound of hazelnuts. The Board, in a mail vote completed at the end of April 2000, unanimously recommended 2000-2001 expenditures of $596,293 and an assessment rate of $0.005 per pound. The proposed assessment rate of $0.005 per pound is $0.001 higher than the $0.004 per pound rate currently in effect. The quantity of assessable hazelnuts for the 2000-2001 marketing year is estimated at 50,000,000 pounds. Income derived from handler assessments, along with interest income and funds from the Board's authorized reserve, would be adequate to cover budgeted expenses.

The major expenditures recommended by the Board for the 2000-2001 marketing year include $39,613 for personal services (salaries and benefits), $7,416 for rent, $5,000 for compliance, $23,000 for the crop estimate, $275,000 for promotion, and $182,364 for an emergency fund. Budgeted expenses for these items in 1999-2000 were $51,385, $7,308, $5,000, $21,000, $275,000, and $182,364, respectively. As mentioned earlier, the Board would not make any decision on using emergency funds until December 2000, at the earliest.

The Board based its recommended assessment rate increase on the 2000-2001 crop estimate, the 2000-2001 marketing year expenditures estimate, as well as the current and projected balance of the operating reserve. Hazelnut shipments for the 2000-2001 marketing year are estimated at 50,000,000 pounds, which should provide $250,000 in assessment income. Income derived from handler assessments, along with interest income ($13,000) and funds from the Board's authorized reserve ($333,293), would be adequate to cover budgeted expenses. Funds in the reserve (currently $483,440) would be kept within the maximum permitted by the order (approximately one marketing year's operational expenses). Excess funds may be maintained and used by the Board until December 1 following the end of a marketing year (§ 982.62(b)). The Board is required to refund or credit, upon request, each handler's share of the excess prior to January 1.

The Board reviewed and unanimously recommended 2000-2001 expenditures of $596,293. With the 2000-2001 marketing year assessable hazelnut crop estimated at 50,000,000 pounds, or 26,000,000 pounds less than for 1999-2000, the Board recommended the assessment rate increase to prevent its operating reserve from going lower than $150,000. The Board believes that a reserve less than this is too low. Prior to arriving at this budget, the Board considered information from various sources, such as the Proration Committee, the Budget Committee, and the Marketing and Promotion Committee. Alternative expenditure levels were discussed by these groups, based upon the relative value of various research, marketing, and promotion projects to the hazelnut industry.

A review of historical information and preliminary information pertaining to the upcoming marketing year indicates that the grower price for the 2000-2001 marketing year could range between $0.32 and $0.49 per pound of hazelnuts. Therefore, the estimated assessment revenue for the 2000-2001 marketing year as a percentage of total grower revenue could range between 1.02 and 1.56 percent.

This action would increase the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs would be offset by the benefits derived by the operation of the marketing order. In addition, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.

This proposed rule would impose no additional reporting or recordkeeping requirements on either small or large hazelnut handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

The Department has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

A 30-day comment period is provided to allow interested persons to respond to this proposed rule. Thirty days is deemed appropriate because: (1) The 2000-2001 marketing year begins on July 1, 2000, and the marketing order requires that the rate of assessment for each marketing year apply to all assessable hazelnuts handled during such marketing year; (2) the Board needs to have sufficient funds to pay its expenses which are incurred on a continuous basis; and (3) handlers are aware of this action which was unanimously recommended by the Board in a mail vote and is similar to other assessment rate actions issued in past years.

For the reasons set forth in the preamble, 7 CFR part 982 is proposed to be amended as follows:

The contents of this preamble are listed in the following outline:

On November 12, 1999, President Clinton signed the GLB Act (Pub. L. 106-102) into law. Section 501, entitled Protection of Nonpublic Personal Information, requires the NCUA Board, the federal banking agencies, including the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, and the Office of Thrift Supervision, the Securities and Exchange Commission, state insurance authorities, and the Federal Trade Commission (collectively, the “Agencies”) to establish appropriate standards for the financial institutions subject to their respective jurisdictions relating to the administrative, technical, and physical safeguards for customer records and information. These safeguards are intended to: (1) Insure the security and confidentiality of customer records and information; (2) protect against any anticipated threats or hazards to the security or integrity of such records; and (3) protect against unauthorized access to or use of such records or information that would result in substantial harm or inconvenience to any customer.

Section 505(b) of the GLB Act provides that these standards are to be implemented by the NCUA and the federal banking agencies in the same manner, to the extent practicable, as standards pursuant to section 39(a) of the Federal Deposit Insurance Act (FDIA). Section 39(a) of the FDIA requires the federal banking agencies to establish operational and managerial standards for insured depository institutions relative to, among other things, internal controls, information systems, and internal audit systems, as well as such other operational and managerial standards as determined to be appropriate. 12 U.S.C. 1831p(a). Section 39 of the FDIA provides for standards to be prescribed by guideline or by rule. 12 U.S.C. 1831p(d)(1). The FDIA also provides that, if an institution fails to comply with a standard issued as a rule, the institution must submit a compliance plan within particular time frames while, if an institution fails to comply with a standard issued as a guideline, the agency has the discretion as to whether to require an institution to submit a compliance plan. 12 U.S.C. 1831p(e)(1). Section 39 of the FDIA does not apply to the NCUA, and the Federal Credit Union Act does not contain a similar, regulatory framework for the issuance and enforcement of standards. In preparation of NCUA's proposed regulation and appendix with guidelines, NCUA staff has worked with an interagency group that has included representatives from the federal banking agencies. The NCUA Board's understanding is that the federal banking agencies intend to issue proposed standards by guidelines that will be published as an appendix to their safety and soundness standards.

The NCUA Board has determined that it can best meet the congressional directive to prescribe standards through an amendment to NCUA's existing regulation governing security programs in federally-insured credit unions. The proposed regulation will require that federally-insured credit unions establish a security program addressing the safeguards required by the GLB Act. The Board also proposes to publish an appendix to the regulation that will set out guidelines, the text of which is substantively identical to the guidelines anticipated from the federal banking agencies. The guidelines are intended to outline industry best practices and assist credit unions to develop meaningful and effective security programs to ensure their compliance with the safeguards contained in the regulation.

Currently, NCUA regulations require that federally-insured credit unions have a written security program designed to protect each credit union from robberies, burglaries, embezzlement, and assist in the identification of persons who attempt such crimes. Expanding the environment of protection to include threats or hazards to member information systems is a natural fit within a comprehensive security program. To evaluate compliance, the NCUA will expand its review of credit union security programs and annual certifications. This review will take place during safety and soundness examinations for federal credit unions and within the established oversight procedures for state-chartered, federally-insured credit unions. If a credit union fails to establish a security program meeting the regulatory objectives, the NCUA Board could take a variety of administrative actions. The Board could use its cease and desist authority, including its authority to require affirmative action to correct deficiencies in a credit union's security program. 12 U.S.C. 1786(e) and (f). In addition, the Board could employ its authority to impose civil money penalties. 12 U.S.C. 1786(k). A finding that a credit union is in violation of the requirements of proposed § 748.0(b)(2) would typically result only if a credit union fails to establish a written policy or its written policy is insufficient to reasonably address the objectives set out in the proposed regulation.

The proposed Guidelines apply to “nonpublic personal information” of “members” as those terms are defined in 12 CFR part 716, the Privacy Rule. Under Section 503(b)(3) of the GLB Act and part 716, credit unions will be required to disclose their policies and practices with respect to protecting the confidentiality, security, and integrity of nonpublic personal information as part of the initial and annual notices to their members. Defining terms consistently should facilitate the ability of credit unions to develop their privacy notices in light of the guidelines set forth here. NCUA derived key components of the proposed Guidelines from security-related supervisory guidance developed with the federal banking agencies through the Federal Financial Institutions Examination Council (FFIEC).

The NCUA Board requests comment on all aspects of the proposed amendment of § 748.0 and the guidelines, as well as comment on the specific provisions and issues highlighted in the section-by-section analysis below.

The discussion that follows applies to the proposed rule Part 748.

The security program in § 748.0(b) previously addressed only those threats due to acts such as robberies, burglaries, larcenies, and embezzlement. In the emerging electronic marketplace, the threats to members, credit unions, and the information they share to have a productive, technologically competitive, financial relationship, have increased. The security programs to ensure protections against these emerging crimes and harmful actions must keep pace. Congress directed in Section 501(b) of the GLB Act that the Agencies establish standards to ensure financial institutions protect the security and confidentiality of the nonpublic personal information of its customers.

To meet this directive, the proposed rule revises paragraph (b) of § 748.0 to require that a credit union's security program include protections to ensure the security and confidentiality of member records, protect against anticipated threats or hazards to the security or integrity of such records, and protect against unauthorized access to or use of such records that could result in substantial harm or inconvenience to a member. This modification expands the security program objectives to include the emerging threats and hazards to members, credit unions, and the information they share to have a financial relationship.

The proposed rule would have an effective date of November 13, 2000; however, compliance would not be required until July 1, 2001. This is consistent with Part 716, the Privacy Rule, and the other Agencies. NCUA intends to maintain its 90-day compliance period for newly-chartered or insured credit unions found in § 748.0(a). This section requires that each credit union establish its written security program within 90 days from the date of insurance. While the GLB Act, and the other Agencies regulations are silent as to compliance for newly chartered or insured institutions, NCUA believes it is reasonable to continue to provide this compliance time frame for such credit unions.

The discussion that follows applies to the NCUA's proposed Guidelines.

The NCUA Board has determined that the proposed information security plan requirements are covered under the Paperwork Reduction Act. NCUA is submitting a copy of this proposed rule to the Office of Management and Budget (OMB) for its review.

The proposed amendment would require federally-insured credit unions to develop a written information security plan to protect the security, confidentiality, or integrity of member information systems. The Board estimates it will take an average of 40 hours for a credit union to comply with the information security plan requirement. The Board also estimates that 10,525 credit unions will have to develop this plan so the total initial paperwork burden is estimated to be approximately 421,000 hours. The estimate of annual burden of review and changes is 15 hours for 10,500 credit unions, totaling 157,500.

The Paperwork Reduction Act of 1995 and OMB regulations require that the public be provided an opportunity to comment on the paperwork requirements, including an agency's estimate of the burden of the paperwork requirements. The NCUA Board invites comment on: (1) Whether the paperwork requirements are necessary; (2) the accuracy of NCUA's estimate on the burden of the paperwork requirements; (3) ways to enhance the quality, utility, and clarity of the paperwork requirements; and (4) ways to minimize the burden of the paperwork requirements. Comments should be sent to: OMB Reports Management Branch, New Executive Office Building, Room 10202, Washington, DC 20503; Attention: Alex T. Hunt, Desk Officer for NCUA. Please send NCUA a copy of any comments you submit to OMB.

The Regulatory Flexibility Act (5 U.S.C. 601-612) (RFA) requires an agency to publish an initial regulatory flexibility analysis with this proposed rule except to the extent provided in the RFA, whenever the agency is required to publish a general notice of proposed rulemaking for a proposed rule. The Board cannot at this time determine whether the proposed rule would have significant economic impact on a substantial number of small entities as defined by the RFA. Therefore, pursuant to subsections 603(b) and (c) of the RFA, the Board provides the following initial regulatory flexibility analysis.

The NCUA is requesting comment on the proposed interagency Guidelines published pursuant to section 501 of the GLB Act. Section 501 requires the Agencies to publish standards for financial institutions relating to administrative, technical, and physical standards to: (1) Insure the security and confidentiality of customer records and information; (2) protect against any anticipated threats or hazards to the security or integrity of such records; and (3) protect against unauthorized access to or use of such records or information which could result in substantial harm or inconvenience to any customer. Since these requirements are expressly mandated by the GLB Act, it is the view of the Board that the GLB Act's requirements account for most, if not all, of the economic impact of the proposed Guidelines.

The SUPPLEMENTARY INFORMATION section above contains this information. The legal basis for the proposed rule is the GLB Act.

The proposed rule would apply to all federally insured credit unions. Small credit unions are those with less than $1,000,000 in assets of which there are approximately 1,624.

The information collection requirements imposed by the proposed rule are discussed above in the section on the Paperwork Reduction Act.

The statute and the proposed rule require a credit union to develop an information security program to safeguard member information. Development of such a program involves assessing risks to member information, establishing policies, procedures, and training to control risks, testing the program's effectiveness, and managing and monitoring service providers. The NCUA believes that the establishment of information security programs is a sound business practice for a credit union and is already addressed by existing supervisory procedures. However, some credit unions may need to establish or enhance information security programs, but the cost of doing so is not known. The NCUA seeks any information or comment on the costs of establishing information security programs.

The NCUA is unable to identify any statutes or rules which would overlap or conflict with the requirement to develop and implement an information security program. The NCUA seeks comment and information about any such statutes or rules, as well as any other state, local, or industry rules or policies that require a credit union to implement business practices that would comply with the requirements of the proposed rule.

As previously noted, the proposed rule's requirements are expressly mandated by the GLB Act. The proposed rule attempts to clarify the statutory requirements for all credit unions. The proposed rule also provides substantial flexibility so that any credit union, regardless of size, may adopt an information security program tailored to its individual needs. The NCUA welcomes comment on any significant alternatives, consistent with the GLB Act, that would minimize the impact on small credit unions.

Executive Order 13132 encourages independent regulatory agencies to consider the impact of their regulatory actions on state and local interests. In adherence to fundamental federalism principles, NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order. This proposed rule, if adopted, 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. NCUA has determined the proposed rule and appendix does not constitute a policy that has federalism implications for purposes of the executive order.

NCUA has determined that the proposed rule and appendix will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999, Pub. L. 105-277, 112 Stat. 2681 (1998).

NCUA's goal is clear, understandable regulations that impose minimal regulatory burden. NCUA requests comments on whether the proposed rule and appendix are understandable and minimally intrusive if implemented as proposed. NCUA invites comments on how to make this proposal easier to understand. For example:

(1) Has NCUA organized the material to suit your needs? If not, how could this material be better organized?

(2) Are the provisions in the Guidelines clearly stated? If not, how could the Guidelines be more clearly stated?

(3) Do the Guidelines contain technical language or jargon that is not clear? If so, which language requires clarification?

(4) Would a different format (grouping and order of sections, use of headings, paragraphing) make the Guidelines easier to understand? If so, what changes to the format would make the Guidelines easier to understand?

(5) What else could NCUA do to make the Guidelines easier to understand?

For the reasons set forth in the preamble, the NCUA Board proposes to amend 12 CFR 748 as follows:

SBA proposes to amend its regulations dealing with the Pre-Disaster Mitigation Loan Program (program). This proposed rule would clarify the application and loan approval processes and will make plain language edits to support the Administration's efforts to communicate clearly with the public.

The Pre-Disaster Mitigation Loan Program is a pilot program authorized by Congress at a level of 15 million dollars for each of 5 fiscal years from 2000 through 2004. The program allows SBA to make low interest, fixed rate loans to small businesses for the purpose of implementing mitigation measures that will protect the small business from disaster related damage. The Pre-Disaster Mitigation Loan Program was developed in support of Project Impact, a formal mitigation program established by FEMA. These initiatives encourage preparedness rather than rely solely on a response and recovery approach to emergency management.

SBA has determined that this proposed rule is a significant rule within the meaning of Executive Order 12866. However, it is not likely to have an annual economic effect of $100 million or more, result in a major increase in costs or prices, or have a significant adverse effect on competition or the U.S. economy.

SBA has determined that this proposed rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612. Given that Congress has limited the funding level for this pilot program, the program can only serve a limited number of small businesses. With a maximum loan amount of $50,000, the number of small businesses affected under this program would be 300. Even if the loan amounts did not reach the maximum level, and amounted to only $25,000 per loan, the number of small businesses affected would only be 600. This is not substantial, in view of the fact that there are some 13-16 million small businesses across the country.

For the purposes of the Paperwork Reduction Act, 44 U.S.C. Ch. 35, SBA has submitted the Pre-Disaster Mitigation Small Business Loan Application (application) to the Office of Management and Budget (OMB) for review. SBA is requesting that OMB approve or disapprove of this collection of information within 30 days of submission. This application will allow small businesses to apply for pre-disaster mitigation loans and will provide SBA with the information necessary to evaluate applicants. The application will request such information as name, address, location and type of mitigation project, type of business, management information, organization type, and financial information to permit SBA to determine repayment ability. The applicant will have to complete an application each time it applies for a pre-disaster mitigation loan. SBA estimates that the time necessary to complete an application for the Pre-Disaster Mitigation Loan Program will average 2 hours.

SBA is seeking comments on: (a) Whether the information SBA proposes to collect on the application is necessary for the proper performance of this program, (b) the accuracy of the burden estimate (time estimated to complete the application), (c) ways to minimize the burden estimate, and (d) ways to enhance the quality of the information being collected. Please send comments regarding this proposed collection to Bernard Kulik, Associate Administrator, Office of Disaster Assistance, 409 3rd Street, SW., Washington, DC 20416, and to David Rostker, Office of Management and Budget, Office of Information and Regulatory Affairs, 725 17th Street, NW., Washington, DC 20503.

For purposes of Executive Order 13132, SBA has determined that this proposed rule has no federalism implications.

For purposes of Executive Order 12988, SBA certifies that this proposed rule is drafted, to the extent practicable, to be in accordance with the standards set forth in section 3 of that Order.

For the reasons stated in the preamble, SBA proposes to amend 13 CFR parts 121 and 123 as follows:

The FAA invites comments on this proposed rule. You may submit whatever written data, views, or arguments you choose. You need to include the rule's docket number and submit your comments in triplicate to the address specified under the caption “ ADDRESSES. ” The FAA will consider all comments received on or before the closing date. We may amend the proposed rule in light of comments received. Factual information that supports your ideas and suggestions is extremely helpful in evaluating the effectiveness of the proposed AD action and determining whether we need to take additional rulemaking action.

The FAA is re-examining the writing style we presently use in regulatory documents, in response to the Presidential memorandum of June 1, 1998. That memorandum requires federal agencies to communicate more clearly with the public. We are interested in your comments on whether the style of this document is clearer, and any other suggestions you might have to improve the clarity of FAA communications that affect you. You can get more information about the Presidential memorandum and the plain language initiative at http://www.plainlanguage.gov.

The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of the proposed rule that might suggest a need to modify the rule. You may examine all comments we receive before and after the closing date of the rule in the Rules Docket. We will file a report in the Rules Docket that summarizes each FAA contact with the public that concerns the substantive parts of the proposed AD.

If you want us to acknowledge the receipt of your comments, you must include a self-addressed, stamped postcard. On the postcard, write “Comments to Docket No. 2000-CE-29-AD.” We will date stamp and mail the postcard back to you.

The FAA has received reports of six instances where the recording quality of the cockpit voice recorder (CVR) system in Raytheon Beech Models 1900, 1900C, and 1900D airplanes was so poor that the information was practically unrecoverable.

Substandard quality cockpit voice recordings could affect air safety if important information that the CVR provides is not available after an accident. This information helps determine the probable cause of an accident and aids in developing necessary corrective action or design changes to prevent future accidents.

Raytheon has issued Recommended Service Bulletin SB 23-3094, Issued: November, 1999.

The service bulletin includes procedures for:

1. Replacing the DB Systems 437 and 437-001 audio amplifiers with 437-003 configuration amplifiers; and

2. Incorporating Kit 114-3032-1 and modifying the electrical wiring to assure that the audio amplifiers remain connected to the pilot's and copilot's microphones during transmissions.

After examining the circumstances and reviewing all available information related to the incidents described above, we have determined that:

This proposed AD requires you to accomplish the actions in Raytheon Recommended Service Bulletin SB 23-3094, Issued: November, 1999.

The compliance time of the proposed AD is “within 12 months after the effective date of this AD.”

The unsafe condition defined in this document is not a result of the number of times the airplane is operated, rather is a result of the present configuration of the CVR system. The chance of this situation occurring is the same for an airplane with 100 hours time-in-service (TIS) as it is for an airplane with 1,000 hours TIS. For this reason, FAA has determined that a compliance based on calendar time should be utilized in the proposed AD in order to assure that the unsafe condition is addressed on all airplanes in a reasonable time period.

The following chart provides estimates of the cost this proposed AD would impose upon the public:

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

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

Air transportation, Aircraft, Aviation safety, Safety.

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add a new airworthiness directive (AD), applicable to certain Gulfstream Model G-IV series airplanes, was published in the Federal Register as a Notice of Proposed Rulemaking (NPRM) on April 9, 1993 (58 FR 18347). The proposed rule would have required inspection of the data plate on the bottom of the hydraulic brake control module (HBCM) to verify the part and serial numbers, and replacement of the HBCM, if necessary. That action was prompted by a landing incident that involved a malfunction of the braking system. The proposed actions were intended to prevent a malfunction of the braking system, which could lead to reduced controllability of the airplane on the ground.

Since the issuance of that NPRM, Gulfstream has provided evidence to the FAA that the actions proposed in the NPRM have been accomplished on all affected airplanes (Evidence was provided to the FAA in Gulfstream's letter of May 30, 2000, which is filed in the Rules Docket.)

Upon further consideration, the FAA has determined that, based on this evidence, the previously identified unsafe condition no longer exists with regard to the Gulfstream Model G-IV series airplanes. Accordingly, the proposed rule is hereby withdrawn.

Withdrawal of this notice of proposed rulemaking constitutes only such action, and does not preclude the agency from issuing another notice in the future, nor does it commit the agency to any course of action in the future.

Since this action only withdraws a notice of proposed rulemaking, it is neither a proposed nor a final rule and therefore is not covered under Executive Order 12866, the Regulatory Flexibility Act, or DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979).

Accordingly, the notice of proposed rulemaking, Docket 92-NM-206-AD, published in the Federal Register on April 9, 1993 (58 FR 18347), is withdrawn.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add a new airworthiness directive (AD), applicable to all Gulfstream G-1159 (G-II), G-1159A (G-III), and G-1159B (G-IIB) series airplanes, was published in the Federal Register as a Notice of Proposed Rulemaking (NPRM) on June 24, 1996 (61 FR 32369). The proposed rule would have required a one-time inspection to detect corrosion of the material layers of the lower aft fuselage skin in Fuselage Station (FS) 580 bulkhead assembly, and repair, if necessary. The proposal also would have required modification of the aft fuselage area and various follow-on actions. That action was prompted by reports of varying levels of corrosion in the structure at FS 580. The proposed actions were intended to prevent the retention of moisture in the fuselage structure, and subsequent corrosion in FS 580 bulkhead assembly, which could result in reduced structural capability of the skin joint and resultant depressurization of the airplane.

Since the issuance of that NPRM, Gulfstream has provided evidence to the FAA that the actions proposed in the NPRM have been accomplished on all affected airplanes. (Evidence was provided to the FAA in Gulfstream's letter of May 30, 2000, which is filed in the Rules Docket.)

Upon further consideration, the FAA has determined that the unsafe condition no longer exists on the subject airplanes. Accordingly, the proposed rule is hereby withdrawn.

Withdrawal of this notice of proposed rulemaking constitutes only such action, and does not preclude the agency from issuing another notice in the future, nor does it commit the agency to any course of action in the future.

Since this action only withdraws a notice of proposed rulemaking, it is neither a proposed nor a final rule and therefore is not covered under Executive Order 12866, the Regulatory Flexibility Act, or DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979).

Accordingly, the notice of proposed rulemaking, Docket 95-NM-202-AD, published in the Federal Register on June 24, 1996 (61 FR 32369), is withdrawn.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add a new airworthiness directive (AD), applicable to all Gulfstream Model G- 1159 (G-II), G-1159A (G-III), and G-1159B (G-IIB) series airplanes, was published in the Federal Register as a Notice of Proposed Rulemaking (NPRM) on May 8, 1996 (61 FR 20764). The proposed rule would have required inspections to detect cracking and/or corrosion at various locations of the wings, and modification of cracked and/or corroded parts. That action was prompted by a report indicating that cracks, caused by stress corrosion, were found at various locations at buttock line (BL) 0 to BL 19 of the lower wing plank. The proposed actions were intended to prevent such stress corrosion, which could result in structural failure of the wing under certain load conditions.

Since the issuance of that NPRM, Gulfstream has provided evidence to the FAA that the actions proposed in the NPRM have been accomplished on all affected airplanes. (Evidence was provided to the FAA in Gulfstream's letter of May 30, 2000, which is filed in the Rules Docket.)

Upon further consideration, the FAA has determined that requiring the modification specified in the NPRM (Rules Docket 96-NM-90-AD) is unnecessary since the unsafe condition no longer exists. Accordingly, the proposed rule is hereby withdrawn.

Withdrawal of this notice of proposed rulemaking constitutes only such action, and does not preclude the agency from issuing another notice in the future, nor does it commit the agency to any course of action in the future.

Since this action only withdraws a notice of proposed rulemaking, it is neither a proposed nor a final rule and therefore is not covered under Executive Order 12866, the Regulatory Flexibility Act, or DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979).

Accordingly, the notice of proposed rulemaking, Docket 96-NM-90-AD, published in the Federal Register on May 8, 1996 (61 FR 20764), is withdrawn.

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

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification (e.g., reasons or data) for each request.

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-62-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-62-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, notified the FAA that an unsafe condition may exist on certain Airbus Model A330 and A340 series airplanes. The DGAC advises that it has received reports of servo-control rod end failures occurring on the active aileron. These failures have been attributed to wear and migration of the Teflon liner of the eye-end spherical bearing, which then caused metal-to-metal contact. This condition, if not detected and corrected, could result in failure of the active aileron servo-controls and consequent reduced controllability of the airplane.

The manufacturer has issued Airbus Service Bulletins A330-27-3073, Revision 01 (for Model A330 series airplanes), and A340-27-4079, Revision 01 (for Model A340 series airplanes), each dated January 18, 2000. These service bulletins describe procedures for repetitive inspections to check for backlash of the spherical bearing of the active aileron servo-controls, and follow-on corrective actions, if necessary. Follow-on corrective actions involve, among other things, installing new ECP7 standard servo-controls and performing repetitive inspections, or replacing ECP7 standard servo-controls with ECP8 or ECP9 standard servo-controls, which would eliminate the need for the repetitive inspections required by this proposed AD.

The DGAC classified these service bulletins as mandatory and issued French airworthiness directives 2000-014-108(B) (for Model A330 series airplanes) and 2000-017-134(B) (for Model A340 series airplanes), each dated January 12, 2000, in order to assure the continued airworthiness of these airplanes in France.

Additionally, Airbus has issued Service Bulletins A330-27-3075, dated September 24, 1999, and A330-27-3054, Revision 01, dated November 8, 1999 (for Model A330 series airplanes); and A340-27-4081, dated September 24, 1999, and A340-27-4062, Revision 01, dated November 8, 1999 (for Model A340 series airplanes). These service bulletins are referenced in the previously described service bulletins as additional sources of service information for the installation of ECP8 or ECP9 standard servo-controls, which would eliminate the need for the repetitive inspections.

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

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

The Airbus service bulletins (A330-27-3073 and A340-27-4079) identify various compliance times for replacement of the active aileron servo-controls, depending upon the amount of backlash detected; the French airworthiness directives support those criteria. However, this proposed AD would require that, if any backlash greater than 0.2 millimeter (mm) (0.0078 inch) is detected, corrective actions be accomplished prior to further flight. The FAA has determined that, because of the safety implications and consequences associated with excess backlash, any subject active aileron servo-control that is found to have an amount of backlash exceeding the specified limits of this AD must be replaced prior to further flight.

The FAA estimates that 3 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 20 work hours per airplane to accomplish the proposed inspection, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $3,600, or $1,200 per airplane, per inspection cycle.

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

Should an operator elect to accomplish the optional terminating action, it would take approximately between 16 and 20 work hours per airplane, depending upon the airplane model, to accomplish the proposed optional terminating action, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this optional terminating action on U.S. operators is estimated to be between $960 and $1,200 per airplane.

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

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

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

On April 10, 2000, the Commission published in the Federal Register a request for public comments on the overall costs, benefits and the continuing need for its Guides for the Household Furniture Industry 16 CFR part 250, as part of its regulatory review program, 65 FR 18933. The Guides are voluntary guidelines issued by the Commission to assist members of the furniture industry in complying with section 5 of the FTC Act. The Federal Register Notice (“notice”) posed eleven questions in all; some were general regulatory review questions, while others asked about material issues that are specific to the household furniture industry. Pursuant to the Federal Register notice, the comment period relating to the Household Furniture Guides currently ends on June 9, 2000.

The Commission received a request for an extension of the comment period from the American Furniture Manufacturers Association (“AFMA”). AFMA has indicated that additional time is required so that its members can prepare thorough, thoughtful responses to the proposals and questions contained in the Federal Register notice.

The Commission is mindful of the need to deal with this matter as expeditiously as possible. However, the Commission is also aware that some of the issues raised by the Federal Register notice may be complex and it welcomes as much substantive input as possible to facilitate its decisionmaking process. Accordingly, in order to provide sufficient time for these and other interested parties to prepare useful comments, the Commission has decided to extend the deadline for comments until July 10, 2000.

The Commission issued part 1211 on December 21, 1992 to minimize the risk of entrapment by residential garage door openers. As mandated by section 203 of Public Law 101-608, subpart A of part 1211 codifies garage door operator entrapment provisions of Underwriter Laboratories, Inc. (“UL”) standard UL 325, third edition, “Door, Drapery, Louver and Window Operators and Systems.” Subparagraph (c) of section 203 of Pub. L. 101-608 also required the Commission to incorporate into part 1211 any revisions that UL proposed to the entrapment protection requirements of UL 325, unless the Commission notified UL that the revision does not carry out the purposes of Pub. L. 101-608.

UL proposed revisions to UL 325 on June 30, 1998 and made them final on September 18, 1998. The Commission determined that the entrapment related revisions do carry out the purposes of Public Law 101-608. This proposed rule would incorporate into subpart A of part 1211 those revisions that relate to entrapment by residential automatic garage door operators. It would also correct a few typographical errors in part 1211.

The changes to the UL standard allow for advances in the state of the art in garage door safety. Some new garage door operators have an inherent entrapment protection system that can continuously monitor the position of the door. The UL revisions add requirements for this type of system. Some new garage door operators have an inherent secondary door sensor that is independent of the primary entrapment protection system. The UL revisions add requirements for this type of new system. Finally, the UL standard adds some new and revised provisions concerning instructions and field installed labels. The proposed rule would incorporate these changes into the CPSC mandatory standard.

Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Commission certifies that this rule will not have a significant impact on a substantial number of small entities. Most of the changes are editorial and minor. The substantive changes only affect the few companies that are developing the new type of garage door operators discussed above. Moreover, UL has already made these changes to its UL 325 standard which is widely followed by the industry. The Commission also certifies that this rule will have no environmental impact. The Commission's regulations state that safety standards for products normally have little or no potential for affecting the human environment. 16 CFR 1021.5(c)(1). Nothing in this proposed rule alters that expectation.

Public Law 101-608 contains a preemption provision. It states: “those provisions of laws of States or political subdivisions which relate to the labeling of automatic residential garage door openers and those provisions which do not provide at least the equivalent degree of protection from the risk of injury associated with automatic residential garage door openers as the consumer product safety rule” are subject to preemption under 15 U.S.C. 2075. Pub. L. 101-608, section 203(f).

Accordingly, 16 CFR part 1211 is proposed to be amended as follows:

This notice ask experts on growth impairments in children, and other interested members of the public, for comments that will help us decide how we should revise section 100.00 of the listings. We use the criteria in the listings to evaluate disability claims under both the Social Security disability insurance (title II) and Supplemental Security Income (SSI) (title XVI) programs at the third step of the sequential evaluation processes for adults and children. The listings describe impairments that are considered severe enough to prevent a person from doing any gainful activity. In the case of a child under age 18 seeking SSI benefits based on disability, the listings describe impairments that are considered severe enough to cause marked and severe functional limitations. For more information on the definitions of disability and on the sequential evaluation processes, see 20 CFR § § 404.1505 and 404.1520 (for title II), 416.905 and 416.920 (for SSI adults), and 416.906 and 416.924 (for children claiming SSI benefits based on disability).

The listings are divided into Part A and Part B. Part A contains medical criteria that we use to evaluate claims filed by individuals age 18 and over. The Part A listings can also apply to children if the disease processes have a similar effect on adults and younger persons. Part B contains medical criteria that apply only to children. In both parts, the impairments are grouped by major body systems; e.g., musculoskeletal, cardiovascular, and mental. More complete explanations of the listings and their role in the disability evaluation process are set out in 20 CFR § § 404.1525 and 404.1526 (for title II) and 20 CFR § § 416.925, 416.926, and 416.926a (for SSI).

Section 100.00 of the listings is in Part B and contains the medical criteria we use to evaluate linear growth impairments in children. Section 100.00 consists of a preface that explains key concepts used in the section, and two growth impairment listings: 100.02 and 100.03. Listings 100.02 and 100.03 involve only linear growth impairments; i.e., impairments that affect a child's length or height. We also refer to the growth impairment listings in other Part B body systems listings for cases in which certain specified disease processes cause impaired linear growth. For example, in the cardiovascular body system, listing 104.06G provides criteria for evaluating congenital heart disease that is accompanied by growth failure “as described in 100.00.” When we revise the current growth impairment listings, we may also have to revise the body system listings that refer to the growth impairment listings.

Other listings do not refer to the linear growth impairment listings in section 100.00, but include weight-related growth criteria. For example, listing 103.02E.6 contains criteria for evaluating bronchopulmonary dysplasia that is accompanied by involuntary weight loss or failure to gain weight at an appropriate rate for the child's age. Several other listings, including listings 104.02D, 105.08, and 114.08I, also include weight-related growth criteria. If we include weight-related criteria in the revised growth impairment listings, we may also have to revise those body system listings that now include weight-related criteria.

We first published the Part B childhood listings, including the growth impairment listings, in the Federal Register on March 16, 1977 (42 FR 14705). We made minor changes to the growth impairment listings on December 6, 1985 (50 FR 50068). Since 1985, we have extended the expiration date for the growth impairment listings without making further revisions. Currently, the growth impairment listings will no longer be effective on July 2, 2001, unless we extend, revise or promulgate them again by publication of a final rule in the Federal Register (64 FR 29786). We plan to revise the current growth impairment listings before they expire on July 2, 2001.

We will make revisions to ensure that the criteria in the listings reflect any advances in medical knowledge regarding children with linear growth impairments, and to ensure that the criteria in the listings reflect a level of severity that results in “marked and severe functional limitations.”

Information about growth impairments in children, especially the functional consequences of such impairments, is not readily available. Therefore, we are using this method of requesting comments before formally proposing any revisions to the listings. We want to give interested members of the public an early opportunity to provide us with information about growth impairments in children as we begin the rulemaking process. We are asking experts on growth impairments in children and other interested members of the public for ideas about how we should revise the existing growth impairment listings, including the material in the preface. We are particularly interested in determining if any scientific research shows a relationship between growth impairments and loss of functioning, and whether and how impaired linear growth affects a child's functioning.

In addition, we are interested in comments on whether the criteria for evaluating weight-related impaired growth or failure to thrive in children should be included in revised growth impairment listings, or included in other body system listings as they are now. We are interested in any suggestions about revising those portions of the other body system listings that directly reference the linear growth impairment listings, or that mention a child's growth (including weight) without specifying linear growth or the growth impairment listings.

We will consider your comments along with other information, such as medical research, and our program experience. Based on all of that information, we will decide how to revise the growth impairment listings. We will not respond to your comments directly. However, when we propose revisions to the growth impairment listings, we will publish a Notice of Proposed Rulemaking (NPRM) in the Federal Register and include a formal request for comments. In that case, we will consider and respond to significant comments that we receive in response to the NPRM when we issue any final rules.

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

See the information provided in the Direct Final action which is located in the Rules Section of this Federal Register .

On the date of enactment of the 1990 CAA Amendments, PM-10 areas, including the Las Vegas Valley Planning Area, meeting the qualifications of section 107(d)(4)(B) of the amended Act, were designated nonattainment by operation of law. See 56 FR 11101 (March 15, 1991). The boundaries of the Las Vegas Valley nonattainment area (Hydrologic Unit #212) are codified at 40 CFR 81.329.

Once an area is designated nonattainment, section 188 of the CAA outlines the process for classification of the area and establishes the area's attainment deadline. In accordance with section 188(a), at the time of designation, all PM-10 nonattainment areas, including the Las Vegas Valley, were initially classified as moderate by operation of law. Section 188(b)(1) of the Act further provides that moderate areas can subsequently be reclassified as serious before the applicable moderate area attainment date if at any time EPA determines that the area cannot “practicably” attain the PM-10 NAAQS by this attainment date.

Nevada submitted a moderate area PM-10 plan for Las Vegas Valley on December 6, 1991. Based on this submittal, EPA determined on January 8, 1993, that the Las Vegas Valley could not practicably attain both the annual and 24-hour standards by the applicable attainment deadline for moderate areas (December 31, 1994, per section 188(c)(1) of the Act), and reclassified the Las Vegas Valley as serious (58 FR 3334). In accordance with section 189(b)(2) of the Act, SIP revisions for the Las Vegas Valley addressing the requirements for serious PM-10 nonattainment areas in section 189(b) and (c) of the Act were required to be submitted by August 8, 1994 and February 8, 1997.

The air quality planning requirements for PM-10 nonattainment areas are set out in subparts 1 and 4 of Title I of the Clean Air Act. Those states containing initial moderate PM-10 nonattainment areas were required to submit, among other things, the following provisions by November 15, 1991:

(a) Provisions to assure that reasonably available control measures (RACM) (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology (RACT)) shall be implemented no later than December 10, 1993 (CAA sections 172(c)(1) and 189(a)(1)(C));

(b) Provisions to assure implementation of RACT on major stationary sources of PM-10 precursors except where EPA has determined that such sources do not contribute significantly to exceedances of the PM-10 standards (CAA section 189(e));

(c) Either a demonstration (including a complete emissions inventory and air quality modeling) that the plan will provide for attainment as expeditiously as practicable but no later than December 31, 1994 or a demonstration that attainment by that date is impracticable (CAA sections 188(c)(1) and 189(a)(1)(B));

(d) For plan revisions demonstrating attainment, quantitative milestones which are to be achieved every 3 years and which demonstrate reasonable further progress (RFP) toward attainment by December 31, 1994 (CAA section 189(c)); and

(e) For plan revisions demonstrating impracticability, such annual incremental reductions in PM-10 emissions as are required by part D of the Act or may reasonably be required by the Administrator for the purpose of ensuring attainment of the PM-10 NAAQS by the applicable attainment date (CAA sections 172(c)(2) and 171(1)).

Moderate area plans were also required to meet the generally applicable SIP requirements for reasonable notice and public hearing under section 110(l), necessary assurances that the implementing agencies have adequate personnel, funding and authority under section 110(a)(2)(E)(i) and 40 CFR 51.280; and the description of enforcement methods as required by 40 CFR 51.111, and EPA guidance implementing these sections.

Moderate PM-10 areas that have been reclassified to serious, such as the Las Vegas Valley area, in addition to meeting the moderate area requirements outlined above, must submit a plan that includes provisions addressing additional requirements. The additional serious area requirements that are relevant to this proposed action include:

(a) A demonstration (including a complete emissions inventory and air quality modeling) that the plan provides for attainment of the PM-10 standards by December 31, 2001, or for any area seeking an extension of that date, a demonstration that attainment by 2001 is impracticable and a demonstration of attainment by the most expeditious alternative date practicable (CAA sections 188(c)(2) and 189(b)(1)(A));

(b) Provisions to assure that the best available control measures (BACM) (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of best available control technology (BACT)) for the control of PM-10 shall be implemented no later than 4 years after the area is reclassified (CAA section 189(b)(1)(B));

(c) Provisions to assure implementation of BACT on major stationary sources of PM-10 precursors except where EPA has determined that such sources do not contribute significantly to exceedances of the PM-10 standards (CAA section 189(e)); and

(d) Quantitative milestones which are to be achieved every 3 years and which demonstrate RFP toward attainment by the applicable attainment date (CAA section 189(c)).

As discussed above in connection with the moderate area plan requirements, SIPs submitted to meet the CAA's serious area requirements must conform to general requirements applicable to all SIPs.

EPA has issued a “General Preamble”  1 describing EPA's preliminary views on how the Agency intends to review SIPs and SIP revisions submitted under Title I of the Act, including those state submittals containing moderate PM-10 nonattainment area SIP provisions. EPA has also issued an Addendum to the General Preamble (Addendum) describing the Agency's preliminary views on how it intends to review SIPs and SIP revisions containing serious area plan provisions. 2

Sections 172(c)(1) and 189(a)(1)(C) read together require that moderate area PM-10 SIPs include RACM and RACT for existing sources of PM-10. These SIPs were to provide for implementation of RACM/RACT no later than December 10, 1993. Since the moderate area deadline for the implementation of RACM/RACT has passed, EPA has concluded that the RACM/RACT required in the State's moderate plan must now be implemented as soon as possible. Delaney v. EPA, 898 F.2d 687, 691 (9th Cir. 1990). EPA has interpreted this requirement to be “as soon as practicable.” 63 FR 15920, 15926 (Apr. 1, 1998).

The methodology for determining RACM/RACT is described in detail in the General Preamble. 57 FR at 13540-13541. In summary, EPA suggests starting to define RACM with the list of available control measures for fugitive dust, residential wood combustion, and prescribed burning contained in Appendices C1, C2, and C3 of the General Preamble and adding to this list any additional control measures proposed and documented in public comments. The state can then cull from the list any measures for insignificant emission sources of PM-10 and any measures that are unreasonable for technological or economic reasons. The General Preamble does not define insignificant except to say that it would be unreasonable to apply controls to sources that are negligible (“de minimis”) contributors to ambient concentrations. However, in its serious area plan guidance, EPA does establish a presumption, for use in BACM determinations, that a “significant contributor” source category as one that contributes 1 μg/m 3 or more of PM-10 to a location of annual violation and 5 μg/m 3 to a location of 24-hour violation. Addendum at 42011. EPA has also used this same definition to define significance in determining which source categories require the application of RACM. See 63 FR 41326, 41331 (Aug. 3, 1998).

For any RACM that are rejected by the state, the plan must provide a reasoned justification for the rejection. Once the final list of RACM is defined, each RACM must be converted into a legally enforceable vehicle such as a rule, permit, or other enforceable document. General Preamble at 13541.

Under CAA section 189(b)(2), for moderate areas that have been reclassified as serious under section 188(b)(1), the state must submit BACM 18 month after reclassification, i.e., August 8, 1994 for the Las Vegas Valley area, and must implement those measures four years after reclassification, i.e., by February 8, 1997. As with the RACM/RACT implementation deadline, the BACM/BACT deadline has passed. Therefore BACM/BACT must now be implemented as soon as practicable.

BACM is defined as the “maximum degree of emission reduction of PM-10 and PM-10 precursors from a [significant] source [category] which is determined on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, to be achievable for such sources through application of production processes and available methods, systems, and techniques. . . .” Addendum at 42010. BACM/BACT must be determined and documented consistent with the Addendum (at 42012-14) and must be applied, at a minimum, to each significant source or source category. Addendum at 42010. The state must document its selection of BACM by showing what control measures applicable to each significant source category were considered. Addendum at 42014. BACM should go beyond existing RACM controls and can include expanded use of RACM controls (e.g., paving more miles of unpaved roads). Addendum at 42013.

Both PM-10 moderate and serious area nonattainment SIPs demonstrating attainment must include quantitative milestones to be achieved every three years until the area is designated attainment and must demonstrate RFP toward attainment by the applicable date. CAA section 189(c)(1). EPA has addressed these requirements in several guidance documents. See the General Preamble at 13539, the Addendum at 42015-42017, and the memorandum from Sally Shaver, EPA, to EPA Division Directors, “Criteria for Granting 1-Year Extensions of Moderate PM-10 Nonattainment Area Attainment Dates, Making Attainment Determinations, and Reporting on Quantitative Milestones,” November 14, 1994 (Shaver memorandum). Of these guidance documents, the most comprehensive is the Addendum which discusses both the RFP annual incremental reduction requirement and the appropriate interpretation of the milestone requirement as it relates to moderate areas that have been reclassified to serious. EPA has considerable discretion in reviewing the SIP to determine whether the annual incremental emission reductions to be achieved are reasonable in light of the statutory objective of timely attainment. Addendum at 42015.

With respect to the quantitative milestone requirement, for initial moderate areas, EPA concluded that the SIP should initially address at least two milestones and that the starting point for the first 3-year period would be the SIP submittal due date, i.e. November 15, 1991. EPA further concluded that since the time lag between the first milestone date (November 15, 1994) and the December 31, 1994 attainment deadline was de minimis, emission reduction progress made between the submittal date and December 31, 1994 would satisfy the first milestone. The second milestone to be addressed by these initial moderate area SIPs was November 15, 1997. General Preamble at 131539, Addendum at 42016, and Shaver memorandum. For moderate areas that are reclassified as serious, the third milestone achievement date is November 15, 2000. Addendum at 42016. The quantitative milestones should consist of elements that allow progress to be quantified or measured, e.g., percent compliance with implemented control measures. Addendum at 42016.

EPA will assess whether an area has achieved RFP in conjunction with determining compliance with the quantitative milestone requirement. Thus a state should address compliance with both requirements in its RFP/milestone reports. The contents of these reports is discussed in the General Preamble, the Addendum, and the Shaver memorandum.

This proposal covers the PM-10 moderate area nonattainment plan titled “PM-10 Air Quality Implementation Plan, Las Vegas Valley, Clark County, Nevada”, (1991 Moderate Plan) submitted to EPA by the Nevada State Department of Natural Resources and Conservation on December 6, 1991; a February 15, 1995 submittal of an “Addendum to the ‘Moderate Area’ PM-10 State Implementation Plan for the Las Vegas Valley” (1995 RACM Addendum); a BACM analysis plan titled “Providing for the Evaluation, Adoption and Implementation of Best Available Control Measures and Best Available Control Technology to Improve PM-10 Air Quality,” (1994 BACM Plan) submitted on December 6, 1994; and the PM-10 serious area nonattainment plan for the Las Vegas Valley nonattainment area titled “Particulate Matter (PM-10) Attainment Demonstration Plan” (1997 Serious Plan), submitted to EPA on August 25, 1997. “Moderate Area SIP” in this proposal refers collectively to the 1991 Moderate Plan and the 1995 RACM Addendum. “Serious Area SIP” refers collectively to the 1994 BACM Plan and the 1997 Serious Plan.

The Clark County Department of Comprehensive Planning and the Clark County Health District are the agencies responsible for addressing PM-10 pollution in the Las Vegas Valley. The Clark County Department of Comprehensive Planning is responsible for the development of the SIP. The Clark County Health District is responsible for development of rules and regulations, air permits, enforcement, and air monitoring.

Since the moderate area attainment deadline, December 31, 1994, has passed, and the Las Vegas Valley has been reclassified from a moderate to a serious nonattainment area, EPA believes that the moderate area attainment demonstration requirements have been superseded by the area's reclassification. See, e.g., 61 FR 54972, 54974 (October 23, 1996). Therefore, EPA addresses only the RACM/RACT and rate of progress provisions of the Moderate Area SIP in this notice.

a. Evaluation of RACM/RACT. EPA is proposing to disapprove the RACM demonstration in the Moderate Area SIP because, among other things, the control measures are not comprehensive enough to constitute RACM for any source category identified in the Moderate Area SIP as significant for the annual or 24-hour standard. For example, the only control measures submitted as RACM for disturbed vacant land include textual references to Clark County's efforts to encourage limits on off-road motor vehicle use on public lands and local government policies promoting infill development. 3 These measures do not establish requirements that prevent vacant land disturbances or mitigate disturbed vacant land throughout the PM-10 nonattainment area and thus do not meet the RACM requirements of the CAA.

EPA is also proposing to disapprove the Moderate Area SIP with respect to the RACT requirement for primary PM-10 sources because existing sources are not subject to controls as required by the CAA  4 . Furthermore, we cannot fully approve Rule 34, New Source Performance Standards for Nonmetallic Mineral Mining and Processing, which was submitted as RACT. For a more detailed review of RACM/RACT, see the Technical Support Document (TSD) that is part of this docket.

b. Evaluation of RFP /Quantitative Milestones. The 1991 Moderate Plan includes a demonstration of attainment for the annual standard and an impracticablity demonstration for the 24-hour standard. See 1991 Moderate Plan, pp. 54-58. 5 PM-10 moderate area nonattainment SIPs demonstrating attainment must include quantitative milestones to be achieved every three years until the area is redesignated attainment and must demonstrate RFP toward attainment of both standards by the applicable date. CAA sections 172(c)(2) and 189(c)(1). Section 171(1) of the Act defines RFP as “such annual incremental reductions in emissions of the relevant air pollutant as are required by this part [part D of title I] or may reasonably be required by the Administrator for the purpose of ensuring attainment of the applicable national ambient air quality standard by the applicable date.” For PM-10 moderate area nonattainment SIPs demonstrating impracticability, sections 172(c)(2) and 171(1) apply. The Moderate Area SIP for the Las Vegas Valley does not contain any annual emission reductions or quantitative milestones. Therefore, EPA proposes to disapprove the Moderate Area SIP for failing to meet the CAA requirements for RFP and quantitative milestones.

a. Emission Inventory. All emission inventories must be current, comprehensive, and complete. Section 172(c)(3). Current inventories present emissions for a relatively recent year. Comprehensive inventories desegregate the emission sources into many. Complete inventories address all of the sources of emissions of the subject pollutant in the area of concern.

The 1997 Serious Plan describes the average annual emissions of directly emitted PM-10 for the base and current attainment years (1995 and 2001) and the March 11, 1994 and 2001 design day for the 1,500 square mile Las Vegas Valley. The significant sources for the 24-hour standard were found to be construction activities which contribute 48.5%, disturbed vacant land with 30.9%, and natural sources  6 with 14% of the total. The total for these three sources is 93.4%. The significant sources for the annual standard were found to be construction activities which contribute 42.6%. Paved and unpaved road dust contributes 11.1%, disturbed vacant land with 6.4%, and natural sources with 36.2% of the total. The total for these four sources is 96.3%. 7

Generally the inventory estimates in the 1997 Serious Plan are well documented, the inventory is reasonably current and the categorization of the inventory is fairly complete. However, the 1997 Serious Plan's inventory has several significant shortcomings:

• The plan does not address inventories for condensible particulate or PM-10 precursors, including volatile organic compounds (VOC), nitrogen oxides (NOx), sulfur dioxide (SO2), and ammonia (NH3). The insignificance of these particulate sources is address in the modeling section of this Notice. Based on air quality analysis, these sources would appear to have a de minimis impact.

• The plan does not include emission estimates for airport activities, agricultural activities, various cooking methods, off-road vehicle exhaust, and lawn care equipment.

The plan acknowledges that primary, condensible, and secondary PM-10 categorically constitute what is called PM-10, but does not address condensible and secondary PM-10 in the inventory. The plan's explanation for not including emissions from condensible and secondary PM-10 is that these emission categories do not contribute significantly to the emission or air quality totals. Condensible and secondary PM-10 generally are not addressed in PM-10 inventories because of their de minimis ambient air quality contribution. Clark County will need to include emissions from these source categories of directly emitted PM-10 in its revised inventories and cite evidence of the triviality of those secondary and condensible emissions contributions.

EPA proposes to disapprove the emissions inventory given these deficiencies.

b. Mobile Source Emissions Budget. The 1997 Serious Plan did not establish any PM-10 emission budgets for the annual or 24-hour PM-10 standard. Thus EPA determined in a letter dated July 12, 1999, to the Nevada Division of Environmental Protection, that the area did not have adequate budgets for purposes of transportation conformity.

c. Evaluation of BACM/BACT. As discussed in the summary of CAA requirements, the Serious Area SIP for the Las Vegas Valley must include control measures consistent with the CAA requirements for BACM and BACT. EPA has determined that, collectively, the submitted rules, ordinances, permits and other measures do not meet the BACM requirements for any significant source category for either PM-10 standard. In summary, EPA is proposing to disapprove the Serious Area SIP for failure to provide for the implementation of BACM based upon the following four deficiencies:

• Failure to demonstrate that the control measures in the Serious Area SIP constitute BACM for significant sources. EPA finds that the Serious Area SIP either lacks BACM for some significant sources without adequate justification or the submitted measures are not comprehensive enough to provide for the implementation of BACM. For example, no measures were submitted as BACM to control vacant lots, unpaved parking lots, 8 or paved road dust.

• Failure to provide an adequate justification for available control measures not being implemented. EPA's RACM guidance indicates that SIP submittals should contain a reasoned justification for partial or full rejection of any available control measures; similar principles apply to consideration of BACM.  9 For example, although the 1994 BACM Plan lists controlling unpaved shoulders and containing truck spillage as candidate BACM for paved roads, the plan indicates that an addendum will be provided in 1997 that documents the evaluation process and adoption and implementation of specific control measures.  10 However, no subsequent BACM evaluation for paved roads was submitted to EPA.

• Lack of sufficient stringency in some submitted measures. Certain requirements (or lack thereof) in rules, ordinances, or permits require further stringency to meet BACM, and/or have not been properly justified by the District as supporting a BACM level of control. For example, EPA believes that the standards established in Rule 41 for construction sites and other sources may be insufficiently protective in many circumstances. Coupled with the fact that construction site permits lack other standards by which compliance can be gauged, there is no assurance that the required construction site controls will be implemented to an extent that meets BACM requirements. The 1994 BACM Plan contains little discussion as to whether or how the specific control measures in the Las Vegas Valley are stringent enough to meet the BACM level of control.

• Failure of certain measures to be fully enforceable. On a macro-scale, this encompasses the concern that important control measures have not been submitted to EPA in a format that can be approved into the SIP and enforced as such. 11 On a micro-scale, vague language or the absence of appropriate standards in permits, rules or ordinances makes them difficult to enforce in an equitable, repeatable, accurate and practical manner to achieve emission reductions. This, in turn, lessens the ability of the control measures to result in a BACM level of control.

The BACM deficiencies summarized in the preceding paragraphs reflect that discussion of BACM in the Serious Area SIP is limited and does not show that the adopted PM-10 control measures for any significant source category collectively meet the CAA's BACM requirements. This may be due to a belief expressed in the 1997 Serious Plan that limitations in the accuracy of PM-10 emission inventories and the lack of specific information on control efficiencies preclude a meaningful application of the procedures for determining BACM. 12 However, EPA does not view this statement as an adequate reason for failure to implement BACM or, alternatively, to provide a justification for not implementing BACM. Furthermore, general estimates of control efficiencies are available  13 and are not required to be exact in order to evaluate whether a candidate or adopted measure meets the BACM requirements.

EPA is also proposing to disapprove the Serious Area SIP with respect to the BACT requirement for primary PM-10 sources. This is because existing sources are not subject to controls that are in place for new and modified sources and there is no justification for not implementing those controls. Also, the Serious Area SIP does not provide sufficient information on stationary source requirements for EPA to evaluate whether BACT is being implemented. Information to be submitted includes all control equipment and/or emission limit requirements, test method requirements, and reporting/recordkeeping requirements. For EPA's complete review of BACM/BACT, see the TSD that is part of this docket.

d. Major Sources of PM-10 Precursors Need BACT Rules. Under section 189(e), BACT controls are required for all existing major sources of VOC, NO X , SO X , and ammonia in the Las Vegas nonattainment area unless they do not contribute significantly to PM-10 levels which exceed the standards in the area. The inventory does not quantify these sources for their secondary PM-10 contribution and therefore EPA cannot determine if controls are needed. Therefore we are proposing to disapprove the Serious Area SIP's BACT demonstration for failure to include such controls or justify why they are not required.

e. Reasonable Further Progress (RFP)/Quantitative Milestones. PM-10 serious area nonattainment SIPs must include quantitative milestones to be achieved every three years until the area is redesignated attainment and must demonstrate RFP toward attainment of both standards by the applicable date. CAA section 189(c)(1). The 1997 Serious Plan for the Las Vegas Valley does not contain annual incremental emission reductions or quantitative milestones for either the annual or 24-hour standard. Therefore, EPA proposes to disapprove the plan for failing to meet the CAA requirement for RFP and quantitative milestones.

f. Attainment Demonstration. Serious area PM-10 SIPs must provide a detailed demonstration (including air quality modeling) that the specified set of strategies will reduce PM-10 emissions so that the standards will be attained as soon as practicable but no later than December 31, 2001 or, for an extension beyond that date, a demonstration that attainment by December 31, 2001 would be impracticable and a demonstration of attainment by the most expeditious alternative date practicable. EPA considers the area to be in attainment of the NAAQS if 24-hour concentrations are 150 μg/m 3 or less and the annual arithmetic mean is 50 μg/m 3 or less.

The attainment demonstration in the 1997 Serious Plan applies to both the 24-hour and the annual NAAQS. The plan does purport to demonstrate attainment for the annual standard by 2001 with a modeled concentration of 49.79 μg/m 3 , 0.21 μg/m 3 below the annual standard. The plan does not demonstrate attainment for the 24-hour standard by 2001, since the modeled concentration of 212.35 μg/m 3 is 62.35 μg/m 3 above the 24-hour standard. 14 The submittal describes several modeling approaches used to assess the effect of control measures on ambient PM-10 concentrations. This is in accord with the spirit of EPA modeling guidance, which recommends a combination of dispersion and receptor models. However, in the details of implementation of the modeling, the submittal falls short of this guidance. The following discussion applies to both the annual and the 24-hour NAAQS, unless otherwise indicated.

The Chemical Mass Balance (CMB) receptor modeling performed as part of the submittal confirmed that around 90% of the PM-10 in the Las Vegas Valley is due to fugitive dust, in general agreement with the emission inventory. Unfortunately CMB is not capable of distinguishing emissions from particular activities such as paved road dust, unpaved road dust, construction activities, etc., so it must be combined with another approach. CMB also showed that secondary particulates (those not directly emitted but forming in the atmosphere from precursors) and vehicle exhaust are small contributors to the area's PM-10 concentrations, only a few percent. The main modeling approach used in the submittal was proportional rollback, in which it is assumed that a source category's contribution to observed PM-10 emissions is directly proportional to its share of the area's PM-10 emission inventory. This is appropriate when no other information is available, or if the sources are uniform across the area modeled. 15 However, the sources are not likely uniform. Though PM-10 can have a regional component, generally a particular fugitive dust source has a fairly localized impact on air quality; the ISCST3 dispersion modeling done as part of the submittal confirmed that individual sources have minimal impact five miles away. Different areas will have different mixes of sources contributing to their PM-10 concentrations. Comparison of area-wide and sub-area emissions inventories shows many similarities in source categories' percent contributions, but also some differences, especially for paved road dust. Thus, a demonstration that the PM-10 NAAQS are attained should take into account differences between sites. Ideally, dispersion modeling would be done to explicitly take into account different sources' distances from modeled locations, in order to show the effect of control measures throughout the area. At a minimum, proportional rollback should have been performed for multiple monitoring sites. 16

Secondary particulates are not addressed in the proportional rollback modeling in the submittal. The effect of this is to inappropriately assume that control measures on primary particulates decrease secondary particulates at the same rate. Though secondaries are only a few percent of the PM-10 ambient concentrations, so this is not a large effect, they should be dealt with explicitly.

In summary, though some solid work was done in preparing the modeling portion of the submittal, it does not adequately account for differences in PM-10 source contributions at different locations. Additional dispersion and receptor modeling work could help with this, with a minimum being the use of proportional rollback at multiple sites representative of the varying mix of sources across the Las Vegas Valley. Lastly, secondary particulates should not implicitly be assumed to decline. The submittal's technical approach is inadequate for its goal of demonstrating attainment of the annual NAAQS, and also for demonstrating the impracticability of attaining the 24-hour NAAQS. The next SIP submittal should use a different approach.

EPA concludes that, because the air quality modeling is not consistent with existing EPA guidelines, the impracticability and attainment demonstrations in the Serious Area SIP are not approvable. The impracticability demonstration is also not approvable because the plan does not provide for the implementation of BACM. Therefore, EPA proposes to disapprove the 24-hour standard impracticability demonstration and the annual standard attainment demonstration.

g. Extension of the Attainment Deadline. CAA section 188(e) allows states to apply for up to a 5-year extension of the serious area attainment deadline of December 31, 2001. In order to obtain the extension, the state must demonstrate that: (1) attainment by 2001 would be impracticable, (2) the state complied with all requirements and commitments pertaining to the area in the implementation plan for the area, (3) the state demonstrates to the satisfaction of the Administrator that the plan for the area includes the most stringent measures that are included in the plan of any state or are achieved in practice in any state, and can feasibly be implemented in the area. 17 The state's request for an extension must also contain a demonstration of attainment by the most expeditious alternative date practicable. For a complete discussion of EPA's proposed interpretation of section 188(e), see 65 FR 19964, 19967-19969 (Apr. 13, 2000)(proposed approval of the Maricopa County PM-10 serious area nonattainment plan). EPA is proposing to deny the State of Nevada's request for an extension for failing to adequately demonstrate that the area cannot practicably attain the 24-hour PM-10 standard by December 31, 2001. Therefore, the area's attainment deadline for both standards remains as soon as practicable but no later than December 31, 2001.

h. Transportation Conformity Budgets. EPA's conformity rule, 40 CFR part 93, requires that transportation plans, programs, and projects conform to the SIP and establishes the criteria and procedures for determining whether or not they do conform. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS. The link between the SIP and transportation planning activities is the conformity emission budget(s) contained in the SIP. On March 2, 1999, the D.C. Circuit Court of Appeals ruled that submitted SIPs cannot be used for conformity determinations unless EPA has affirmatively found the conformity budget adequate through a process providing for public notice and comment. Where EPA finds a budget inadequate, it cannot be used for conformity determinations. As discussed in (2)(b), EPA determined that the PM-10 mobile source emission budgets for the Las Vegas Valley are inadequate and thus cannot be used for conformity determination. The criteria by which we determine whether a SIP's motor vehicle emission budgets are adequate for conformity purposes are outlined in 40 CFR 93.118(e)(4).

a. Adequate Public Process. On November 5,1991, the Clark County Board of County Commissioners (CCBCC) adopted the Las Vegas Valley PM-10 Air Quality Implementation Plan (1991 Moderate Plan), after providing public notice and opportunity to comment. The State submitted the plan as a revision to the Nevada PM-10 SIP (letter from Bob Miller, Governor of Nevada, to Daniel McGovern, EPA Regional Administrator dated December 6, 1991). The SIP submittal includes proof of publication for the notice of the State public hearing. This submittal became complete by operation of law under CAA section 110(k)(1). 18 We believe that the public process associated with the 1991 Moderate Plan meets the procedural requirements of CAA section 110(a) and (l) and 40 CFR 51.102.

On December 6, 1994 CCBCC adopted “Providing for the Evaluation and Implementation of Best Available Control Measures and Best Available Control Technology to Improve PM-10 Air Quality for the Las Vegas Valley” (1994 BACM Plan), after providing public notice and opportunity to comment. The State submitted the plan as a revision to the Nevada SIP (letter from L.H. Dodgion, Administrator, to David Howekamp, EPA Director, Air and Toxics Division, dated February 15, 1995). The SIP submittal includes proof of publication for the notice of CCBCC public hearing. This submittal became complete by operation of law. We believe that the public process associated with the 1994 BACM Plan meets the procedural requirements of CAA section 110(a) and (l) and 40 CFR 51.102.

On August 25, 1997, CCBCC adopted the Las Vegas Valley Non-attainment Area Clark County Nevada Serious Plan (1997 Serious Plan), after providing public notice and opportunity to comment. The State submitted the plan as a revision to the Nevada SIP (letter from L.H. Dodgion, Administrator, to Felicia Marcus, EPA Regional Administrator, dated September 11, 1997). The SIP submittal includes proof of publication for the notice of CCBCC public hearing. This submittal became complete by operation of law. We believe that the public process associated with the 1997 Serious Plan meets the procedural requirements of CAA section 110(a) and (l) and 40 CFR 51.102.

b. Adequate Personnel and Funding .—Section 110(a)(2)(E)(i) of the Clean Air Act requires that implementation plans provide necessary assurances that the state (or the general purpose local government) will have adequate personnel and funding to carry out the plan. Requirements for resources are further defined in 40 CFR part 51, subpart L (51.230-232) and for resources in 40 CFR 51.280. States and responsible local agencies must demonstrate that they have the legal authority to adopt and enforce provisions of the SIP and to obtain information necessary to determine compliance. SIPs must also describe the resources that are available or will be available to the State and local agencies to carry out the plan, both at the time of submittal and during the 5-year period following submittal. The 1997 Serious Plan does not adequately address personnel and funding for the air program in the Las Vegas Valley. The plan needs to detail the number of personnel needed to carry out the air program as well as the funding level and commit to these levels for five years.

c. Adequate Legal Authority .—Section 110(a)(2)(E)(i) of the Clean Air Act requires that implementation plans provide necessary assurances that the state (or the general purpose local government) will have authority under state or local law to carry out the plan. Requirements for legal authority are further defined in 40 CFR 51.230-232. States and responsible local agencies must demonstrate that they have the legal authority to adopt and enforce provisions of the SIP and to obtain information necessary to determine compliance. EPA finds that the State of Nevada has the legal authority to regulate air pollution as evidenced by Nevada Revised Statutes (NRS) 445B.100 through NRS 445B.845.

d. Description of Enforcement Methods. —Section 110(a)(2)(C) requires SIPs to include a program to provide for the enforcement of SIP measures. The implementing regulation for this section is found at 40 CFR 51.111(a) and requires a control strategy to include a description of enforcement methods including (1) procedures for monitoring compliance with each of the selected control measures, (2) procedures for handling violations, and (3) the designation of the agency responsible for enforcement. Procedures for monitoring compliance with existing regulations are missing from the 1997 Serious Plan.

EPA is proposing to disapprove certain provisions of the Moderate Area SIP and Serious Area SIP submitted by the State of Nevada for attaining the PM-10 NAAQS in the Las Vegas Valley. Specifically, EPA is proposing to disapprove the RACM/BACM and RFP/milestone provisions for both the annual and 24-hour PM-10 standards in both the Moderate Area SIP and Serious Area SIP, and the emission inventory, transportation conformity budgets, and attainment demonstration provisions for both standards in the Serious Area SIP. EPA is also proposing to deny the State's request for an extension to December 31, 2006 to attain the 24-hour PM-10 NAAQS in the area. If finalized in a subsequent EPA notice, these disapprovals will trigger the 18-month time clock for mandatory application of sanctions and 2-year time clock for a federal implementation plan under the Act as discussed below.

The CAA establishes specific consequences if EPA disapproves a State plan. Section 179(a) sets forth four findings that form the basis for application of mandatory sanctions, including disapproval by EPA of a State's submission based on its failure to meet one or more required CAA elements. EPA has issued a regulation, codified at 40 CFR 51.31, interpreting the application of sanctions under section 179 (a) and (b). If EPA has not approved a SIP revision correcting the deficiency within 18 months of the effective date of a final rulemaking, pursuant to CAA section 179(a) and 40 CFR 52.31, the offset sanction identified in CAA section 179(b) will be applied in the affected area. If EPA has still not approved a SIP revision correcting the deficiency 6 months after the offset sanction is imposed, then the highway funding sanction will apply in the affected area, in accordance with 40 CFR 52.31. In addition, CAA section 110(c)(1) provides that EPA must promulgate a FIP no later than 2 years after a finding under section 179(a) unless EPA takes final action to approve a revised plan correcting the deficiency within 2 years of EPA's findings. For more details on the timing and implementation of the sanctions, see 59 FR 39859 (August 4, 1994), promulgating 40 CFR 52.31, “Selection of sequence of mandatory sanctions for findings made pursuant to section 179 of the Clean Air Act.” There are, however, certain exceptions to the general rule for the application of sanctions described above. The reader is referred to 40 CFR 52.31(d) for the circumstances under which the application of sanctions may be stayed or deferred.

One of the conformity consequences of the overall plan disapproval is commencement of a conformity freeze. Under a conformity freeze, the area can only move forward on transportation projects included in the first three years of the transportation plan and no new transportation plans can be adopted until the freeze is lifted. If the area submits a new PM-10 SIP with PM-10 budgets, once the PM-10 budgets are deemed adequate by EPA, the freeze is lifted. If the area is in a conformity freeze and a conformity lapse occurs, the area can not come out of the lapse until the freeze is lifted. Note that the conformity freeze would not begin until the effective date of the final plan disapproval. Today, EPA is proposing to disapprove portions of the PM-10 plans for the Las Vegas Valley and therefore the above mentioned time frames for imposing sanctions will not start until the effective date of any final disapproval.

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

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. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

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 E.O. 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This proposed rule is not subject to E.O. 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 proposed rule does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of E.O. 13084 do not apply to this rule.

The Regulatory Flexibility Act (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 proposed rule will not have a significant impact on a substantial number of small entities because disapprovals of SIP revisions under section 110 and subchapter I, part D of the Clean Air Act do not affect any existing requirements applicable to small entities. Federal disapproval of the State SIP submittal will not affect State-enforceability. Moreover, EPA's disapproval of the submittal would not impose any new Federal requirements. Therefore, I certify that this action will not have a significant economic impact on a substantial number of small entities.

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 proposed disapproval action 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. The proposed disapproval will not change existing requirements 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 new regulations. To comply with NTTAA, the 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.

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

On May 10, 2000 EPA published the proposed GWR, 40 CFR parts 141 and 142 (65 FR 30194). The May 10, 2000 notice provided a deadline of 60 days from the date of publication for receipt of public comments. Since the publication date, EPA has received requests to extend the comment period to allow sufficient time for all parties potentially impacted by this proposal to consider and provide comprehensive comments. In response to these requests, EPA has decided to extend the public comment period by an additional 30 days to August 9, 2000.

This is a summary of the Commission's Notice of Proposed Rule Making in ET Docket No. 98-153, adopted May 10, 2000, and released May 11, 2000. The complete text of this Notice of Proposed Rule Making is available for inspection and copying during normal business hours in the FCC Reference Center (Room 239), 445 12th Street, SW, Washington, DC, and also may be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 2100 M Street, NW, Suite 140, Washington, DC 20037.

1. This Notice of Proposed Rule Making responds to an earlier Notice of Inquiry in this proceeding, 63 FR 50184, September 21, 1998. We are proposing to amend 47 CFR 15 to permit products incorporating ultra-wideband (UWB) technologies. While comprehensive tests have not been completed, UWB devices appear to be able to operate on spectrum already occupied by existing radio services without causing interference. This would permit scarce spectrum resources to be used more efficiently. Further testing and analysis is needed before the risks of interference are completely understood. Such testing is being planned by a number of organizations, and an ample opportunity will be provided to ensure that the test results are submitted into the record for public comment.

2. Most near-term applications involve relatively low powers and short operating ranges. Further, it appears that UWB devices are intended to be mass marketed to businesses and consumers such that individual licensing of each device would be impractical. Accordingly, it is proposed that UWB devices be regulated under part 15 of the rules.

3. UWB definition. We propose to employ the definition established by the OSD/DARPA UWB radar review panel with some modifications. The OSD definition states that the −20 dB fraction bandwidth of an UWB emission must be at least 0.25, i.e., the −20 dB bandwidth must be at least 25% of the center frequency. We propose to define a UWB device as any device where the −10 dB fractional bandwidth is greater than 0.25 or the −10 dB bandwidth is greater than 1.5 GHz. The center frequency is proposed to be defined as the average of the upper and lower −10 dB points. We also propose that the bandwidth be determined using the antenna designed to be used with the UWB device. Comments are requested on the following: (1) Should the fractional bandwidth be changed to account for the narrower bandwidth that would be measured using the −10 dB emission points instead of the −20 dB points. (2) Should some other method be used to determine the emission bandwidth, such as a calculated bandwidth based on pulse width. (3) Should UWB be defined as limited to devices that solely use pulsed emissions where the bandwidth is directly related to the narrow pulse width. (4) Should extremely high speed data systems that comply with the UWB bandwidth requirements only because of the high data rate employed, as opposed to meeting the definition solely from the narrow pulse width, be permitted. (5) What alternative definitions should be considered?

4. Frequency bands of operation. We observe that ground penetrating radars (GPRs) must operate at frequencies below 2 GHz in order to obtain the penetration depth and resolution necessary to detect and obtain the images of buried objects. GPRs can neither avoid nor notch out the restricted frequency bands. However, it appears that the risk of interference from GPRs is negligible because the overwhelming majority of their energy is directed into the ground where most of the energy is absorbed and emissions in other directions can be easily shielded. Accordingly, we propose to allow GPRs to operate in any part of the spectrum.

5. It is unclear whether the same arguments that apply to GPRs concerning penetration depth and resolution similarly apply to other imaging devices. We invite comments on whether we should treat such imaging systems the same as GPRs or restrict the operation of such devices below a certain frequency. Comments should address whether the operation of through-wall imaging systems should be limited to parties eligible for licensing under the Public Safety pool of frequencies in part 90 of our rules. Comments also are requested on whether through-wall imaging systems should be required to incorporate automatic power control feathers that would reduce power levels to the minimum necessary to function based on the composition of the surface and its absorption of RF energy.

6. We believe that most other UWB devices generally can operate in the region of the spectrum above approximately 2 GHz without causing harmful interference to other radio services. We have significant concerns about the operation of UWB devices, except for GPRs and possibly through-wall imaging systems, in the region of the spectrum below approximately 2 GHz. We invite comments on UWB operations, potential restrictions on operation for UWB below 2 GHz and the impacts such restrictions would have on any potential applications for UWB technology. We also invite comments as to the precise frequency below which operations of UWB devices may need to be restricted. We also wish to consider a number of alternative approaches to expressly prohibiting operations below 2 GHz. We invite comment as to whether and at what levels, if any, we should permit operation in the restricted bands below 2 GHz, the viability of establishing a general emission limit for UWB devices below 2 GHz, and whether a very stringent limit, or notch, should be applied to the GPS band. We will consider allowing access to the spectrum below 2 GHz provided test results and detailed technical analysis are submitted demonstrating that there is no risk of harmful interference to GPS, to other services operating in restricted frequency bands, or to TV broadcasting.

7. Further testing and analysis. We understand that certain manufacturers of UWB devices and other interested parties are planning tests. We encourage parties to submit the test results into the record by October 30, 2000. We will issue a public notice to provide an opportunity to provide comments and replies on the test results and analysis.

8. Emission limits. We tentatively conclude that it is necessary to regulate both the peak and average emission levels above 1 GHz and the quasi-peak emission levels below 1 GHz. We request comment on whether it is possible for UWB designers to select system parameters to space the UWB spectral lines in places within the GPS band where GPS receivers are less sensitive to interference. We also seek comment on whether we should require use of a scrambler technology that prevents long strings of unchanging bits or, alternatively, a performance requirement that would show that the transmitted spectrum remains noise like in the case of unchanging input data.

9. We believe that the general emission limits contained in § 15.209 of our rules appear appropriate for UWB operations. However, for emissions from UWB devices other than GPRs and, possibly, through-wall imaging systems we tentatively propose that emissions that appear below approximately 2 GHz be attenuated by at least 12 dB below the general emission limits. Comments are requested on whether such an attenuation level is necessary, or whether additional attenuation below 2 GHz is possible or necessary. We also seek comment on whether the proposed reduction in the emission levels should apply to all emissions below 2 GHz or only to emissions below 2 GHz that fall within the restricted bands. Comments also are requested on whether UWB devices other than GPRs, and possibly through-wall imaging systems, should be permitted to operate below 2 GHz provided they comply with these reduced emission levels.

10. A limit on peak emissions is necessary to reduce the potential for UWB emitters to cause harmful interference to radio operations above 1 GHz. The Notice proposes to establish peak emission limits above 1 GHz as follows: (1) the peak level of the emission when measured over a bandwidth of 50 MHz shall not exceed the maximum permitted average emission level by more than 20 dB; and (2) the absolute peak output of the emission over its entire bandwidth shall not exceed the maximum permitted average emission level by more than [20 + 20log 10 (−10 dB bandwidth of the UWB emission in Hz/50 MHz)] dB or 60 dB, whichever is the lower value. We intend to rely heavily on submitted test data in determining what peak emission standards should apply to UWB products. We believe that further testing and analysis is desirable on the cumulative impact of emissions from multiple UWB transmitters.

11. We believe that the existing limit in § 15.207 for controlling the amount of energy permitted to be conducted onto the AC power lines is a reasonable starting point for establishing standards until additional experience can be gained with this equipment. We do not agree that higher conducted limits, equivalent to the limits for Class A digital devices, should be permitted in non-residential environments.

12. Measurement procedures. Below 1 GHz, we propose to require emissions to be measured using a quasi-peak detector. Above 1 GHz, we propose to require average measurements to be made with a 1 MHz resolution bandwidth (RBW) as we currently do for intentional and unintentional radiators. We also propose that spectrum analyzer video averaging with a video bandwidth (VBW) of no greater than 10 kHz or less than 10 Hz be used in conjunction with peak hold to determine the average level as a function of frequency. We request comments on applying the measurement procedures specified in HP Application Note 150-2.

13. We propose to measure the peak emission levels of UWB signals directly in the time domain. For peak measurements over a 50 MHz bandwidth, the IF output of a microwave receiver that uses a wide bandwidth, e.g., 50 MHz, can be analyzed using a conventional oscilloscope. We believe that the total peak output can be measured with standard sampling oscilloscope techniques for UWB signals with evenly spaced identical elements, such as radar signals, and for UWB signals with modulation on their amplitude or spacing. We also request comments on allowing peak measurements to be made using the pulse desensitization correction factor (PDCF) provided the applicant can show that the measurements, as corrected by the PDCF, is the true peak for the waveform being tested. As with average measurements, the procedures specified in HP Application Note 150-2 would be applied. We recognize that the peak level measured with a spectrum analyzer is the RMS peak and must be adjusted to obtain the true peak. We seek comment on the type of UWB signals, if any, for which this latter measurement procedure would be appropriate. Comments also are sought on whether the PDCF should be calculated based on an effective pulse width, i.e., two divided by the bandwidth, in Hertz, of the emitted fundamental lobe. We seek comment on what type of measurement antennas are needed to make accurate peak measurements and the least restrictive way we might specify this in our rules.

14. For impulse systems, we believe that the center frequency, as determined by the −10 dB points, should be used as the reference for determining the upper frequency range over which emissions should be measured. However, we are concerned that a manufacturer could employ a low frequency carrier with an extremely narrow pulse or that a narrow pulse impulse system could be used with a low frequency antenna, resulting in emissions extending far beyond the tenth harmonic, the normal upper range of measurements. Accordingly, comments are requested on whether a different method of determining the frequency measurement range should be employed, e.g., based on pulse rise time and width. In addition, commenting parties should note that the lower frequency range of measurements would continue to be determined by the lowest radio frequency generated in the device. Comments are requested on whether the pulse repetition frequency, pulse dithering frequency, modulating frequency or other factors would permit the investigation of a low enough frequency to address the possible amplification of the emitted signal due to antenna resonances below the fundamental emission.

15. Prohibition against Class B, damped wave emissions. We agree that we should eliminate the prohibition against Class B, damped wave emissions for UWB devices as this prohibition does not appear relevant at the power levels being proposed.

16. Other matters. In the Notice we proposed specific regulations regarding the frequency of operation and emission levels that would apply to UWB devices. We also propose to amend 47 CFR 15.215(c) to state that intentional radiators operated under the provisions of 47 CFR 15.217 through 15.255 or subpart E of the current regulations must be designed to ensure that the main lobe or the necessary bandwidth, whichever is less, is contained within the frequency bands designated in those rule section under which the equipment is operated. The requirement to contain the fundamental emission within one of the specified frequency bands would include the effects from frequency sweeping, frequency hopping and other modulation techniques that may be employed as well as the frequency stability of the transmission over variations in temperature and supply voltage. If a frequency stability is not specified, the regulation would continue to recommend that the fundamental emission be kept within at least the central 80 percent of the band in order to minimize the possibility of out-of-band operation.

17. Initial Regulatory Flexibility Analysis. As required by the Regulatory Flexibility Act (RFA), 1 the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the policies and rules proposed in this Notice of Proposed Rule Making (“ Notice ”). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the Notice. The Commission will send a copy of this Notice, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. See 5 U.S.C. 603(a). We have included this IRFA, although we expect that this action will not cause interference to existing radio stations. We have determined to do this analysis to create a fuller record in this proceeding.

This rule making proposal is initiated to obtain comments regarding proposed changes to the regulations for radio frequency devices that do not require a license to operate. The Commission seeks to determine whether its standards should be amended to permit the operation of ultra-wideband transmission systems.

The proposed action is taken pursuant to Sections 4(i), 301, 302, 303(e), 303(f), 303(r), 304 and 307 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 301, 302, 303(e), 303(f), 303(r), 304, and 307.

The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. 2 The Regulatory Flexibility Act defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small business concern.”  3 A small business concern is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. 4 Nationwide, there are approximately 4.44 million small business firms, according to SBA reporting data. 5 A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.”  6 Nationwide, as of 1992, there were approximately 275,801 small organizations. 7 “Small governmental jurisdiction” generally means “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000.”  8 As of 1992, there were approximately 85,006 such jurisdictions in the United States. This number includes 38,978 counties, cities, and towns; of these, 37,566, or 96 percent, have populations of fewer than 50,000. 9 The Census Bureau estimates that this ratio is approximately accurate for all governmental entities. Thus, of the 85,006 governmental entities, we estimate that 81,600 (91 percent) are small entities. SBA has defined a small business for Standard Industrial Classification (SIC) category 4812 (Radiotelephone Communications) to be small entities when they have no more than 1500 employees. 10 According to the Bureau of Census, only 12 radiotelephone firms out of a total of 1,178 such firms which operated during 1992 had 1,000 or more employees. 11 Given this definition, nearly all such companies are considered small.

Part 15 transmitters already are required to be authorized under the Commission's certification procedure as a prerequisite to marketing and importation. The reporting and recordkeeping requirements associated with these equipment authorizations would not be changed by the proposals contained in this Notice. These changes to the regulations would permit the introduction of an entirely new category of radio transmitters. All radio equipment manufacturers, large and small, would be provided with the opportunity to produce this equipment.

The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. We do not expect that the rules proposed in this Notice of Proposed Rule Making will have a significant economic impact on small entities.

In response to the Notice of Inquiry, in this proceeding no party raised small entity issues. We have considered several alternatives to the proposed standards, however. For example, in response to some of the comments, we considered the possibility of prohibiting all UWB operation below 2 GHz, (except for ground penetrating radar systems) in order to provide additional interference protection to the authorized radio services operating below this frequency. Instead, we have indicated our concerns about operation below 2 GHz and have stated that such operation would be considered provided test results and technical analysis demonstrated that there was no risk of harmful interference to other authorized entities (which would include small authorized entities). Similar issues were considered for all of the standards proposed in this Notice of Proposed Rule Making. The proposed standards are intended to accommodate most of the systems presented to us without favoring any particular manufacturer's design.

None.

18. The proposed action is authorized under sections 4(i), 301, 302, 303(e), 303(f), 303(r), 304 and 307 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 301, 302, 303(e), 303(f), 303(r), 304, and 307.

The Department of Energy (DOE) and its predecessor agencies have traditionally accomplished their defense and energy research mission responsibilities through the use of management and operating (M&O) contracts. Although M&O contracts are authorized by the Federal Acquisition Regulation (FAR) at Part 17.6, FAR policies generally do not provide the special terms and conditions for award and contract administration processes tailored to the M&O contracting environment. Accordingly, the Department has established specific policies and procedures at Department of Energy Acquisition Regulation (DEAR) Parts 917 and 970. Included among these policies and procedures is a unique set of cost principles which govern the allowability of costs under M&O contracts.

Last year DOE conducted a review of the policies and procedures governing the award and administration of M&O contracts. One of the objectives of the review was to determine whether current DEAR cost principle coverage could be eliminated and reliance placed on similar coverage contained in the FAR. As a result of a comparative analysis between the FAR and the DEAR cost principles and related procedures, the review concluded that the FAR cost principles adequately addressed DOE interests, and that supplemental coverage was necessary only in a limited number of cases.

In this notice DOE proposes to amend the DEAR to implement the results of a comparative analysis of the FAR, Part 31, and DEAR 970.31, and 970.52. The amendments will delete those cost principles and related provisions of DEAR 970 that are adequately covered by the FAR and renumber those cost principles supplemented in the DEAR to conform to the FAR numbering.

One exception is the “Travel costs” cost principle (FAR 31.205-46 and DEAR 970.3102-17). DOE has retained separate coverage, although identical to the current FAR coverage, because there is a proposed change to the FAR section on travel costs that will change the government-wide standard of travel cost allowability to a “reasonableness” standard. If the FAR change is made, DOE will need to retain the current travel cost requirements mandated by Congress. Section 309, Pub. L. 106-60, Energy and Water Appropriations Act, 2000, requires DOE to limit travel cost reimbursement to the “rates and amounts” that apply to federal employees.

Also, DOE has conducted a separate review of the Department's policies addressing home office/corporate allocations, bid and proposal costs, and cost of money. This separate review resulted in a determination that existing policy relative to home office/corporate allocations remains valid and that the individual locations should continue to determine appropriate home office/corporate allocations. The review also determined that bid and proposal costs should remain unallowable due to the unique nature of the M&O arrangement. For cost of money, DOE policy will be amended to state that such costs are allowable, rather than unallowable. This change should have little impact on DOE as most facilities are government-owned. Accordingly, the existing language which makes this cost unallowable is deleted. The result of this deletion is to make this an allowable cost under indirect and overhead cost allocations.

In summary, DOE chooses to adopt all of the FAR cost principles except as supplemented in the areas identified:

Leopard frogs ( Rana pipiens complex), long considered to consist of a few highly variable species, are now recognized as a diverse assemblage of more than two dozen species (Hillis et al . 1983), with many species described in the last 20 years. Mecham (1968) recognized two distinct variations of “ Rana pipiens ” in the White Mountains of Arizona. One of these, referred to as the “southern form,” was depicted as a stocky frog with raised folds down both sides of the back (dorsolateral folds) that were interrupted and deflected medially towards the rear. The other form matched previous descriptions of Rana pipiens . Based on morphology, mating calls, and genetic analyses (electrophoretic comparisons of blood protein samples), Platz and Platz (1973) demonstrated that at least three distinct forms of leopard frogs occurred in Arizona, including the southern form. This southern form was subsequently described as the Chiricahua leopard frog ( Rana chiricahuensis ) (Platz and Mecham 1979).

This new species was distinguished from other members of the Rana pipiens complex by a combination of characters, including a distinctive pattern on the rear of the thigh consisting of small, raised, cream-colored spots or tubercles on a dark background, dorsolateral folds that were interrupted and deflected medially, stocky body proportions, relatively rough skin on the back and sides, and often green coloration on the head and back (Platz and Mecham 1979). The species also has a distinctive call consisting of a relatively long snore of 1 to 2 seconds in duration (Davidson 1996, Platz and Mecham 1979). Snout-vent lengths of adults range from approximately 54 to 139 millimeters (mm) (2.1 to 5.4 inches (in)) (Stebbins 1985, Platz and Mecham 1979). The Ramsey Canyon leopard frog ( Rana subaquavocalis ) is similar in appearance to the Chiricahua leopard frog, but it often grows to a larger size and has a distinct call that is typically given under water (Platz 1993).

Recent articles in the scientific literature report the extirpation and extinction of amphibians in many parts of the world (Berger et al. 1998, Lips 1998, Laurence et al. 1996, Vial and Saylor 1993, Pechmann et al. 1991, Blaustein and Wake 1990). Frogs in the family Ranidae, which includes the Chiricahua leopard frog, are particularly affected (Sredl et al. 1997, Sredl 1993, Bradford 1991, Clarkson and Rorabaugh 1989, Hayes and Jennings 1986, Corn and Fogleman 1984). Although these population declines are thought to result in many cases from habitat loss, predation by introduced predators, or other factors, populations are sometimes extirpated from seemingly pristine habitats or from areas where no obvious cause of decline can be identified (Meyer and Mikesic 1998, Sredl 1993, Drost and Fellers 1993, Corn and Fogleman 1984, Hines et al. 1981). Although natural long-term fluctuations in the size of populations and the number of populations within a species are often not well studied, increased extirpation rates and in some cases apparent extinction, coupled with recent declining trends in the status of many amphibian species is alarming and may represent a very recent and rapid global decline of an entire class of vertebrates (Blaustein et al. 1994, Wake 1991).

Observers have speculated that these declines may have resulted from one or more factors, including habitat disturbance, predation by introduced predators such as nonnative fish and amphibians, disease, drought, pesticides, acid rain, heavy metals, increased ultraviolet radiation due to atmospheric ozone depletion, over-collection, natural events such as severe storms or floods, global warming or other climatic events, and as a result of the dynamics of small populations and groups of small populations or metapopulations (Berger et al. 1998, Lips 1998, Lind et al. 1996, Rosen et al. 1996, 1994; Hale et al. 1995, Blaustein et al. 1994, Sredl and Howland 1994, Pounds and Crump 1994, Sredl 1993, Bradford 1991, Wyman 1990, Clarkson and Rorabaugh 1989, Corn and Fogleman 1984, Baxter and Meyer 1982, Dimmitt 1979).

The Chiricahua leopard frog is an inhabitant of cienegas (mid-elevation wetland communities often surrounded by arid environments), pools, livestock tanks, lakes, reservoirs, streams, and rivers at elevations of 1,000 to 2,710 meters (m) (3,281 to 8,890 feet (ft)) in central and southeastern Arizona; west-central and southwestern New Mexico; and in Mexico, northern Sonora and the Sierra Madre Occidental of Chihuahua (Sredl et al. 1997, Degenhardt et al. 1996, McCranie and Wilson 1987, Platz and Mecham 1979). The taxonomic status of frogs in southern Chihuahua and possibly Durango is in question. The species has been reported from southern Chihuahua and Durango (Hillis et al. 1983, Platz and Mecham 1984, 1979); however, Webb and Baker (1984) concluded that frogs from southern Chihuahua were not Chiricahua leopard frogs, as expected. The range of the species is divided into two parts, including—(1) a southern group of populations (the majority of the species' range) located in mountains and valleys south of the Gila River in southeastern Arizona, extreme southwestern New Mexico, and Mexico; and (2) northern montane populations in west central New Mexico and along the Mogollon Rim in central and eastern Arizona (Platz and Mecham 1979). There are historical records in Pima, Santa Cruz, Cochise, Graham, Apache, Greenlee, Gila, Coconino, Navajo, and Yavapai counties, Arizona; and Catron, Grant, Hidalgo, Luna, Soccoro, and Sierra counties, New Mexico (Sredl et al. 1997, Degenhardt et al. 1996). Historical records for the Chiricahua leopard frog also exist from several sites in northern and central Chihuahua, northern Sonora, and possibly southern Chihuahua and Durango (Platz and Mecham 1984, 1979; Webb and Baker 1984; Hillis et al. 1983).

Male Chiricahua leopard frogs exhibit variable development of vestigial (small, nonfunctional) oviducts. Vestigial oviducts are absent in most specimens from the northern populations but are generally present in specimens from southern populations (Platz and Mecham 1979). This and other characteristics that differ regionally throughout the range of the species suggest genetic differentiation. This differentiation is being investigated and may result in a description of the northern populations as a separate species from the southern populations (James Platz, Creighton University, pers. comm. 1994). If the species is split into two distinct taxa, fewer populations would exist within each taxon.

Chiricahua leopard frogs were either collected or observed at 212 localities in Arizona (B. Kuvlesky, Buenos Aires National Wildlife Refuge, pers. comm. 1997; Terry Myers, Apache-Sitgreaves National Forest, pers. comm. 1997; Sredl et al. 1997; Rosen et al. 1996; Snyder et al. 1996; C. Schwalbe, University of Arizona, pers. comm. 1995; R. Zweifel, Portal, Arizona, pers. comm. 1995; Hale 1992; Clarkson and Rorabaugh 1989; Fish and Wildlife Service files, Phoenix, Arizona). In New Mexico, the species was either collected or observed at 170 localities (Jennings 1995; Randy Jennings, Western New Mexico University, pers. comm. 1999; Charles Painter, New Mexico Game and Fish Department, pers. comm. 1999). Eleven historical localities were listed by Platz and Mecham (1979) in Mexico, mostly from the eastern base and foothills of the Sierra Madre Occidental in Chihuahua and Durango, and one site in northern Sonora, Mexico. Hillis et al. (1983) list another locality from Durango. However, the presence of Chiricahua leopard frogs in the Sierra Madre Occidental of southern Chihuahua was questioned by Webb and Baker (1984). Frogs at a locality on the Sonora-Chihuahua border have been tentatively identified as Chiricahua leopard frogs (Holycross 1998). Some museums still have many southwestern leopard frogs catalogued as Rana pipiens. Once these specimens have been reexamined, additional historical localities for Rana chiricahuensis may result. Also, frogs observed at some localities, which may have been Rana chiricahuensis , were not positively identified.

Many collections of Chiricahua leopard frogs were made before 1980 (Jennings 1995; Platz and Mecham 1979; Frost and Bagnara 1977; Mecham 1968). Recent surveys to document the status and distribution of the species were conducted primarily from the mid-1980's to the present (Sredl et al. 1997, 1995, 1994, 1993; Rosen et al. 1996; Fernandez and Bagnara 1995; Jennings 1995; Rorabaugh et al. 1995; Rosen 1995; Zweifel 1995; Sredl and Howland 1994, 1992; Hale 1992; Scott 1992; Wood 1991; Clarkson and Rorabaugh 1989; Rosen and Schwalbe 1988). These surveys were summarized by Jennings (1995) for New Mexico and Sredl et al. (1997) for Arizona. In 1995, Jennings reported Chiricahua leopard frogs at 11 sites in New Mexico. An additional 16 populations have been found since 1995 (R. Jennings, pers. comm. 1999, C. Painter, pers. comm. 1999), for a total of 27. Twenty-two of these occur north of Interstate 10 (northern populations), and five are in the southwestern corner of the state (southern populations). Sredl et al. (1997) reported that during 1990-1997 Chiricahua leopard frogs were found at 61 sites in southeastern Arizona (southern populations) and 15 sites in central and east-central Arizona (northern populations). As a means to make the Arizona and New Mexico status information more comparable, the number of sites at which Chiricahua leopard frogs were observed from 1995 to the present in Arizona were tallied. Based on available data, particularly Sredl et al. (1997) and Rosen et al. (1996), Chiricahua leopard frogs were observed at 52 sites in Arizona from 1995 to the present, including 9 northern localities and 43 southern localities.

Recent surveys of potential habitats in Arizona are more complete than surveys done in New Mexico. Sredl et al. (1997) conducted 656 surveys for ranid frogs (frogs in the family Ranidae) within the range of the Chiricahua leopard frog in southeastern Arizona. Rosen et al. (1996, 1994), Hale (1992), Wood (1991), Clarkson and Rorabaugh (1989), and others have also surveyed wetlands in southeastern Arizona extensively. It is unlikely that many additional new populations will be found there. A greater potential exists for locating frogs at additional localities in Arizona's northern region. Sredl et al. (1997) conducted 871 surveys for ranid frogs in the range of the northern localities, but report that only 25 of 46 historical Chiricahua leopard frog localities were surveyed during 1990-1997. Unsurveyed historical localities are primarily located on the San Carlos and Fort Apache Reservations, in areas that have generally not been accessible to State and Federal biologists. Additional populations of Chiricahua leopard frogs of which we are currently unaware may occur on these tribal lands.

Of the historical localities in New Mexico, 80 of 170 were not revisited since frogs were last collected or observed. Twenty-four of these unvisited sites have imprecise locality information that precludes locating or revisiting them. Many others are on private lands to which the owners have denied access to biologists (the privately owned Gray and Ladder ranches are notable exceptions). As in Arizona, potential habitat within the range of the southern populations has been surveyed more extensively than that of the northern populations. From 1990-1991, Scott (1992) conducted extensive surveys of the Gray Ranch, which contains much of the Chiricahua leopard frog habitat in southwestern New Mexico. Observations from numerous other herpetologists were included within his reports, and cowboys and ranch hands were interviewed to locate potential habitats. Jennings (1995) surveyed other potential habitats in southwestern New Mexico outside of the Gray Ranch in the Peloncillo Mountains. Other herpetologists working in that area, including Charles Painter (pers. comm. 1998) and Andy Holycross, Arizona State University (pers. comm. 1997), also worked extensively in this area. Probably few if any unknown populations of Chiricahua leopard frogs occur in southwestern New Mexico.

Surveys in the northern portion of the species' range in New Mexico have been less complete. Jennings (1995) believed that the wilderness areas of the Gila National Forest have the greatest potential for supporting additional extant populations and for securing an intact metapopulation that would have a good chance of long-term persistence.

In Mexico systematic or intensive surveys for Chiricahua leopard frogs were not conducted. However, it is expected that the species almost certainly occurs or occurred at more than the 12 (or 13) reported localities in Chihuahua, Sonora, and Durango (Platz and Mecham 1979, Hillis et al. 1983, and Holycross 1998). However, the identity of leopard frogs in southern Chihuahua (and perhaps Durango) is in some question (Webb and Baker 1984). Only one locality has been documented in Sonora, yet populations occur or occurred in the mountain ranges and valleys adjacent to the Sonora border in Arizona. Other localities probably occur or occurred in Sonora.

The Chiricahua leopard frog is reported absent from a majority of historical localities. In Arizona, Clarkson and Rorabaugh (1989) found the species at only 2 of 36 sites that supported Chiricahua leopard frogs in the 1960s and 1970s. In New Mexico, Jennings (1995) found Chiricahua leopard frogs at 6 of 33 sites supporting the species during the previous 11 years. Sredl and Howland (1994) reported finding Chiricahua leopard frogs at only 12 of 87 historical sites. In 1994, during surveys of 175 wetland sites in southeastern Arizona, Rosen et al. (1994) reported the Chiricahua leopard frog was extant at 19 historical and new sites, but was not found at 32 historical localities. Throughout Arizona, Sredl et al. (1997) found the species present at 21 of 109 historical localities.

Determining whether a species is declining based on its presence or absence at historical sites is difficult. Where frogs are observed at a particular site, they are considered extant. However, a failure to find frogs does not necessarily indicate the species is absent. Corn (1994) notes that leopard frogs may be difficult to detect, museum records do not always represent breeding localities, collections have occurred from marginal habitat, and museum and literature records often represent surveys over long periods of time, which ignores natural processes of geographical extinction and recolonization. The natural processes of extinction and recolonization may be particularly important for the Chiricahua leopard frog because its habitats are often small and very dynamic. Because the Chiricahua leopard frog and other southwestern leopard frogs exhibit a life history that predisposes them to high rates of extirpation and recolonization (Sredl and Howland 1994), its absence from at least some historical sites is expected.

The failure of experienced observers to find frogs indicates that frogs are probably absent, particularly in relatively simple aquatic systems such as most stock tanks and stream segments. Howland et al. (1997) evaluated visual encounter surveys at five leopard frog localities. At sites with known populations that were not dry, frogs were detected in 93 of 100 surveys conducted during the day from April through October. During a drought in 1994, Rosen et al. (1996, 1994) surveyed all known localities of the Chiricahua leopard frog in southeastern Arizona and other accessible waters, and discussed locations of waters and faunal occurrence with landowners. By focusing on aquatic sites that did not go dry, and through careful and often multiple surveys at each site, the authors were able to define distribution at a time when aquatic faunal patterns were clear. The authors believed that nearly all potential habitat was surveyed, and, if frogs were present, they would be detectable at most sites.

Although survey data strongly suggest that the species is absent at a high percentage of historical sites (absent from 76 and 82 percent of historical sites in New Mexico and Arizona, respectively) (Sredl et al. 1997, Jennings 1995), additional analyses are warranted to determine whether extirpations represent natural fluctuations or long-term declines caused by human impacts (Blaustein et al. 1994, Pechman et al. 1991).

Numerous studies indicate that declines and extirpations of Chiricahua leopard frogs are at least in part caused by predation and possibly competition by nonnative organisms, including fish in the family Centrarchidae (Micropterus spp., Lepomis spp.), bullfrogs ( Rana catesbeiana ), tiger salamanders ( Ambystoma tigrinum mavortium ), crayfish ( Oronectes virilis and possibly others), and several other species of fish (Fernandez and Rosen 1998, Rosen et al. 1996, 1994; Snyder et al. 1996; Fernandez and Bagnara 1995; Sredl and Howland 1994; Clarkson and Rorabaugh 1989). For instance, in the Chiricahua region of southeastern Arizona, Rosen et al. (1996) found that almost all perennial waters investigated that lacked introduced predatory vertebrates supported Chiricahua leopard frogs. All waters except three that supported introduced vertebrate predators lacked Chiricahua leopard frogs. The authors noted an alarming expansion of nonnative predatory vertebrates over the last 2 decades. In the Chiricahua region, Chiricahua leopard frogs were primarily limited to habitats subject to drying or near drying, such as stock tanks, which discourages the establishment of nonnative predatory fish and bullfrogs. These habitats are highly dynamic and may be marginal habitats for leopard frogs (Rosen et al. 1994).

Additional evidence that the observed absence of Chiricahua leopard frogs from historical sites is not the result of a natural phenomenon emerges from the analyses of regional occurrence. If the extirpation of the Chiricahua leopard frog were a natural artifact of metapopulation dynamics or other population-level processes, then an observer would not expect to find the species absent from large portions of its range. Rather, Chiricahua leopard frogs might be absent from some historical sites, but would still be found at other new or historical sites in the region. In New Mexico, Jennings (1995) reported extant Chiricahua leopard frog populations in each of the six major drainages where the species was found historically (Tularosa/San Francisco, Mimbres, Alamosa/Seco/Rio Grande, Gila, Playas, and Yaqui). However, all six are characterized by few, mostly small, isolated populations. Populations in the Playas drainage are limited to two livestock tanks. The species was not found on the mainstem, Middle Fork, and East Fork of the Gila River, where the species occurred historically at many localities.

In Arizona, the species is still extant in all major drainages of historical occurrence (Little Colorado, Salt, Verde, Gila, San Pedro, Santa Cruz, Yaqui/Bavispe, and Magdalena river drainages), but was not found recently in some major tributaries and/or from river mainstems. For instance, the species was not reported from 1995 to the present from the following drainages or river mainstems where it historically occurred: White River, East Clear Creek, West Clear Creek, Silver Creek, Tonto Creek, Verde River mainstem, San Francisco River, San Carlos River, upper San Pedro River mainstem, Santa Cruz River mainstem, Aravaipa Creek, Babocomari River mainstem, and Sonoita Creek. In southeastern Arizona, no recent records (1995 to the present) exist for the following mountain ranges or valleys: Pinaleno Mountains, Peloncillo Mountains, Sulphur Springs Valley, Huachuca Mountains, and Canelo Hills. In many of these regions, Chiricahua leopard frogs were not found for a decade or more despite repeated surveys.

These apparent regional extirpations provide further evidence that the species is disappearing from its range. Once extirpated from a region, natural recolonization of suitable habitats is unlikely to occur in the near future. Where the species is still extant, sometimes several small populations are found in close proximity suggesting metapopulations are important for preventing regional extirpation (Sredl et al. 1997).

Disruption of metapopulation dynamics is likely an important factor in regional loss of populations (Sredl et al. 1997, Sredl and Howland 1994). Chiricahua leopard frog populations are often small, and habitats are dynamic, resulting in a relatively low probability of long-term population persistence. However, if populations are relatively close together and numerous, extirpated sites can be recolonized.

Human disturbances can result in increased rates of extinction and decreased rates of recolonization. If the extinction rate for a given population exceeds the colonization rate, that population will go extinct (Hanski 1991). Various human impacts (see Summary of Factors Affecting the Species) can result in increased extinction rates and/or increased isolation of populations within a metapopulation with resulting decreased colonization rates. In addition, big rivers, lakes, and reservoirs that once probably supported large populations of Chiricahua leopard frogs, and were likely stable source populations for dispersal to smaller sites, are almost all inhabited by nonnative predators and are unsuitable as habitat for this species (Sredl et al. 1997, Sredl and Howland 1994). The currently extant smaller populations almost certainly exhibit greater extinction rates than these larger populations did historically.

Rosen et al. (1996) hypothesized that “the ongoing restriction of Chiricahua leopard frogs to shallow, marginal habitat types means that eventually the species will be wiped out by a drought (see Fellers and Drost 1993, Corn and Fogelman 1984) that it would readily have weathered in refugia now pre-empted by nonnative species. Our hypothesis clearly predicts that this species will go extinct in southern Arizona, and probably elsewhere, unless appropriate action is taken.” In New Mexico, Painter (1996) reported similar findings: “ Rana chiricahuensis is rapidly disappearing from southwest New Mexico (Jennings 1995, pers. obs.). Unless these unexplainable trends are quickly reversed, I expect the species to be extirpated from 90-100 percent of its former range in New Mexico within the next decade * * *”.

Based on status information indicating the species was recently extirpated from historical localities (Clarkson and Rorabaugh 1989), the Chiricahua leopard frog was added to the list of category 2 candidate species with the publication of a comprehensive Notice of Review on November 21, 1991 (56 FR 58804). We also included the species as a category 2 candidate in the November 15, 1994, Notice of Review (59 FR 58982). Category 2 candidates were those taxa for which we had some evidence of vulnerability and threats, but for which we lacked sufficient data to support a listing proposal.

Beginning with our February 28, 1996, candidate notice of review (61 FR 7596), we discontinued the designation of multiple categories of candidates, and only those taxa meeting the definition for former category 1 candidates are now considered candidates for listing purposes. Category 1 candidates were taxa for which we had on file sufficient information on biological vulnerability and threats to support proposals to list them as endangered or threatened, but for which preparation of listing proposals was precluded by higher priority listing actions. In the February 28, 1996, notice, we identified the Chiricahua leopard frog as a candidate species.

On June 10, 1998, we received a petition dated June 4, 1998, from the Southwest Center for Biological Diversity to list the Chiricahua leopard frog as endangered and to designate critical habitat for the species. In a letter dated July 7, 1998, we informed the petitioner that, pursuant to the Service's July 1996 Petition Management Guidance, we consider candidate species to be under petition and covered by a “warranted but precluded” finding under section 4(b)(3)(B)(iii) of the Act. Because listing of candidates is, by definition, already warranted, petitions on candidates are redundant. Accordingly, we do not prepare 90-day findings for petitioned candidate species. We address the resolution of the conservation status of the Chiricahua leopard frog and other candidates through the Listing Priority Guidance.

The processing of this proposed rule conforms with the Fiscal Year 2000 Listing Priority Guidance, published 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. This proposed rule is a Priority 3 action and is being completed in accordance with the current Listing Priority Guidance.

In accordance with the policy promulgated July 1, 1994 (59 FR 34270), we will solicit the expert opinions of at least three appropriate and independent specialists regarding this proposed rule. The purpose of such review is to ensure listing decisions are based on scientifically sound data, assumptions, and analyses, including input of appropriate experts and specialists. Peer reviewers will be mailed copies of this proposed rule to list the Chiricahua leopard frog as a threatened species immediately following publication in the Federal Register . We solicit peer reviewers to comment during the public comment period upon the specific assumptions and conclusions regarding this proposed listing. In the preparation of the final rule, we consider all comments received.

Section 4 of the Act and regulations (50 CFR part 424) promulgated to implement the listing provisions of the Act set forth the procedures for adding species to the Federal lists. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in Section 4(a)(1). These factors and their application to the Chiricahua leopard frog ( Rana chiricahuensis Platz and Mecham) are as follows:

A. The present or threatened destruction, modification, or curtailment of its habitat or range. Riparian (in or associated with wetted areas) and wetland communities throughout the range of the Chiricahua leopard frog are much altered and/or reduced in size compared to early-to mid-19th century conditions (Arizona Department of Water Resources 1994; Brown 1985; Hendrickson and Minckley 1984; Minckley and Brown 1982). Dams, diversions, groundwater pumping, introduction of nonnative organisms, woodcutting, mining, urban and agricultural development, road construction, overgrazing, and altered fire regimes all contributed to reduced quality and quantity of riparian and wetland habitat (Belsky and Blumenthal 1997; Wang et al. 1997; DeBano and Neary 1996; Bahre 1995; Brown 1985; Hadley and Sheridan 1995; Ohmart 1995; Stebbins and Cohen 1995; Hendrickson and Minckley 1984; Arizona State University 1979; Gifford and Hawkins 1978).

Many of these changes began before ranid frogs were widely collected or studied in Arizona and New Mexico. The Chiricahua leopard frog may have been much more widely distributed in pre-settlement times than is indicated by historical collections. Extant localities are generally located in stream and river drainage headwaters, springs, and stock tanks. However, historical records exist for the Verde, San Pedro, Santa Cruz, Mimbres, and Gila Rivers, and the species is extant in the mainstem of the San Francisco River in New Mexico and on the Blue River in Arizona. These findings suggest that it may have occurred in other major drainages, such as the mainstems of the Salt, White, Black, and Little Colorado Rivers. Habitat degradation, diversions, loss or alteration of stream flows, groundwater pumping, introduction of nonnative organisms, and other changes are often most apparent on these larger drainages (Sredl et al. 1997, State of Arizona 1990).

Although the cumulative effect of such changes to its habitat is unknown, the extirpation of the Chiricahua leopard frog may have occurred in some major drainages prior to its occurrence being documented. These large drainages connect many of the extant and historical populations and may have served as important corridors for exchange of genetic material and as a source of frogs for recolonization if extirpations occurred within populations (Sredl et al. 1997, Rosen et al. 1996).

Beavers ( Castor canadensis ) likely promoted the creation of Chiricahua leopard frog habitat. The activities of beavers tend to inhibit erosion and downcutting of stream channels (Parker et al. 1985), and ponded water behind beaver dams is favored habitat for ranid frogs. However, beavers were extirpated from some areas by the late 1800s and are still not abundant or are extirpated from other areas where they were once common (Hoffmeister 1986). For example, in Arizona beavers are extirpated from the Santa Cruz River and, before recent reintroductions, were extirpated from the San Pedro River. Loss of this large mammal and the dams it constructed likely resulted in loss of backwater and pool habitat favored by the Chiricahua leopard frog.

These changes occurred before leopard frogs were widely collected; thus, hypotheses concerning correlations between extirpations of beaver and Chiricahua leopard frogs cannot be tested by comparing historical versus extant frog populations. Where beavers occur within the range of the Chiricahua leopard frog today, beaver ponds are often inhabited by nonnative predators, such as introduced fish and bullfrogs, that prey upon and likely preclude colonization by Chiricahua leopard frogs. Because nonnative species often thrive in beaver ponds, the presence of beavers could actually hinder recovery of the Chiricahua leopard frog in some systems.

Stock tanks, constructed as water sources for livestock, are very important habitats for the Chiricahua leopard frog throughout its range. In some areas, stock tanks replaced natural springs and cienegas and provide the only suitable habitat available to the Chiricahua leopard frog. For instance, the only known localities of the Chiricahua leopard frog in the San Rafael and San Bernardino Valleys, Fossil Creek drainage, and in the Patagonia Mountains of Arizona are stock tanks. Sixty-one percent of extant Chiricahua leopard frog localities in Arizona are stock tanks, versus only 35 percent of extirpated localities (Sredl and Saylor 1998), suggesting Arizona populations of this species have fared better in stock tanks than in natural habitats. However, this generalization may not be true for New Mexico, where in recent years many stock tank populations were extirpated. Sredl and Saylor (1998) also found that stock tanks are occupied less frequently by nonnative predators (with the exception of bullfrogs) than natural sites. Therefore, a high probability exists that the Chiricahua leopard frog would be extirpated from many more areas if ranchers had not built and maintained stock tanks for livestock production.

Although stock tanks provide refugia for frog populations and are very important for this species, only small populations are supported by such tanks, and these habitats are very dynamic. Tanks often dry out during drought, and flooding may destroy downstream impoundments or cause siltation, either of which may result in loss of aquatic habitat and extirpation of frog populations. Periodic maintenance to remove silt from tanks may also cause a temporary loss of habitat. Populations of nonnative introduced predaceous fish and bullfrogs, although less prevalent than in natural habitats, sometimes become established in stock tanks and are implicated in the decline of the Chiricahua leopard frog (Rosen et al. 1996, 1994). Stock tanks may facilitate spread of nonnative organisms by providing aquatic habitats in arid landscapes that otherwise may have served as barriers to the spread of such organisms. In New Mexico, stock tank populations in some areas were eliminated by disease (Declining Amphibian Populations Task Force 1993).

Grazing by domestic livestock occurs throughout the range of the Chiricahua leopard frog. The effects of livestock grazing on leopard frog populations are not well studied. As discussed, construction of tanks for livestock has created important leopard frog habitat, and in some cases has replaced destroyed or altered natural wetland habitats. A large and healthy population of Chiricahua leopard frogs coexists with cattle and horses on the Tularosa River, New Mexico (Randy Jennings, Western New Mexico University, pers. comm. 1995).

Maintenance of viable populations of Chiricahua leopard frogs is thought to be compatible with well-managed livestock grazing. However, adverse effects to the species and its habitat may occur under certain circumstances. These effects to habitats include deterioration of watersheds, erosion and/or siltation of stream courses, elimination of undercut banks that provide cover for frogs, and loss of wetland and riparian vegetation and backwater pools (Belsky et al. 1999, Ohmart 1995; Hendrickson and Minckley 1984; Arizona State University 1979). Eggs and tadpoles of the Chiricahua leopard frog are probably trampled by cattle on the perimeter of stock tanks and in pools along streams. Cattle can also contribute to degraded water quality at stock tanks, including elevated hydrogen sulfide concentrations, which are toxic to frogs (Sredl et al. 1997).

Many large impoundments or lakes were created within the range of the Chiricahua leopard frog for water storage, recreation, and as a source of hydroelectric power. Historical records exist for the species from Luna Lake, Nelson Reservoir, Hawley Lake, and Rainbow Lake north of the Gila River in Arizona; and Lake Roberts, Patterson Lake, and Ben Lilly Lake in New Mexico, but surveys at these sites since 1985 located no frogs (Jennings 1995, Arizona Game and Fish Department (AGFD) 1997). Currently, large impoundments invariably support populations of nonnative fish and/or bullfrogs. Predation and possibly competition with leopard frogs by these introduced predators likely contributed to the disappearance of the Chiricahua leopard frog from reservoir habitats.

Construction and operation of reservoirs also alter downstream flows and can result in dramatic changes in stream hydrology, rates of erosion and sedimentation, riparian vegetation, and other components of riparian ecosystems (Johnson 1978). The effects of these changes on Chiricahua leopard frog populations are unknown. However, downstream effects of such impoundments are implicated in the decline of other anurans (frogs and toads), including the endangered arroyo toad ( Bufo californicus ) (Service 1993) and the foothill yellow-legged frog ( Rana boylii ) (Lind et al. 1996).

On the Trinity River in California, the extent of riparian vegetation increased with an accompanying decrease in sandbar habitat, of which the latter was breeding habitat of the yellow-legged frog. Unseasonably high flows from dam releases also resulted in loss of entire cohorts or age groups of larval frogs (Lind et al. 1996). Similar effects may occur in Chiricahua leopard frog habitat. Water temperatures are often colder below dams than in similar unaltered systems (Lind et al. 1996), which may retard development of frog eggs and larvae (Stebbins and Cohen 1995). Lack of scouring flood flows below dams may also create relatively stable pool habitat with established vegetation that favors establishment of bullfrogs (Lind et al. 1996). Dispersal of nonnative fish from impoundments to either downstream or upstream reaches may have resulted in further adverse effects to frog populations.

Only a few extant or historical Chiricahua leopard frog localities are thought to be directly affected by current mining operations. Active mining occurs in California Gulch, Pajarito Mountains, Arizona, but is limited to a short reach of the drainage. The recently proposed Gentry Iron Mine may be located within 1.6 km (1.0 mi) of two Chiricahua leopard frog populations on the Tonto National Forest, Arizona. The resulting effects of the proposed mining activities on these populations are uncertain at this time, but may include changes in water quality and flow rates. Populations of Chiricahua leopard frog northeast of Hurley, Grant County, New Mexico, may also be affected by mining. Evidence of mining can be found at or near many other localities, but few mines are currently active and most do not directly affect the wetland and riparian habitats occupied by the species. Although mining activities were more widespread historically and may have constituted a greater threat in the past, the mining of sand and gravel, iron, gold, copper, or other materials remains a potential threat to the habitat of the Chiricahua leopard frog. In addition, as noted in Factor C of this section, mining also has indirect adverse effects to this species.

Fire frequency and intensity in the mountain ranges of southeastern Arizona and southwestern New Mexico are much altered from historic conditions. Before 1900, surface fires generally occurred at least once per decade in montane forests with a pine component. Beginning about 1870-1900, these frequent ground fires ceased to occur due to intensive livestock grazing that removed fine fuels, followed by effective fire suppression in the mid to late 20th century (Swetnam and Baisan 1996). Absence of ground fires allowed a buildup of woody fuels that precipitated infrequent but intense crown fires (Danzer et al. 1997, Swetnam and Baisan 1996). Absence of vegetation and forest litter following intense crown fires exposes soils to surface and rill erosion during storms, often causing high peak flows, sedimentation, and erosion in downstream drainages (DeBano and Neary 1996). Following the 1994 Rattlesnake fire in the Chiricahua Mountains, Arizona, a debris flow filled in Rucker Lake, a historic Chiricahua leopard frog locality. Leopard frogs (either Chiricahua or Ramsey Canyon leopard frogs) apparently disappeared from Miller Canyon in the Huachuca Mountains, Arizona, after a 1977 crown fire in the upper canyon and subsequent erosion and scouring of the canyon during storm events (Tom Beatty, Miller Canyon, pers. comm. 2000). Leopard frogs were historically known from many localities in the Huachuca Mountains; however, natural pool and pond habitat is largely absent now, and the only breeding leopard frog populations occur in man-made tanks and ponds. Bowers and McLaughlin (1994) list six riparian plant species they believed might have been eliminated from the Huachuca Mountains as a result of floods and debris flow following destructive fires.

Other activities have also affected the habitat of the Chiricahua leopard frog. For instance, in an attempt to increase flow, explosives were used at Birch Springs in the Animas Mountains to open up the spring. The explosion resulted in destruction of aquatic habitat, flows were reduced rather than increased, and Chiricahua leopard frogs subsequently disappeared (N. Scott, pers. comm. 1994).

B. Overutilization for commercial, recreational, scientific, or educational purposes. The collection of Chiricahua leopard frogs in Arizona is prohibited by Arizona Game and Fish Commission Order 41, except where such collection is authorized by special permit. Collection of Chiricahua leopard frogs is also prohibited in Mexico. The collection of Chiricahua leopard frogs is not prohibited in the State of New Mexico.

Over-collection for commercial purposes is known to be a contributing factor in the decline of other ranid frogs (Jennings and Hayes 1985, Corn and Fogelman 1984). Although collection is not documented as a cause of population decline or loss in the Chiricahua leopard frog, the collection of large adult frogs for food, scientific, or other purposes, particularly after a winter die-off or other event that severely reduces the adult population, can hasten the extirpation of small populations. The listing of the Chiricahua leopard frog and its recognition as a rare species is reasonably expected to increase its value to collectors. In 1995, many large adult Ramsey Canyon leopard frogs (closely related to the Chiricahua leopard frog) were illegally collected from a site in the Huachuca Mountains, Arizona, following publicity about the rare status of the frog.

C. Disease or predation. Predation by introduced, nonnative bullfrogs and fish was implicated as a contributing factor in the decline of ranid frogs in western North America (Bradford et al. 1993, Hayes and Jennings 1986, Moyle 1973), and may be the most important factor identified so far in the current decline of the Chiricahua leopard frog (Rosen et al. 1994, 1996). In southeastern Arizona, Rosen et al. (1994, 1996) documented 13 nonnative predaceous vertebrate species in aquatic habitats in the range of the Chiricahua leopard frog, including bullfrog, tiger salamander, and 11 fish species including bass, trout, and catfish, among others.

Rosen et al. (1994, 1996) found that Chiricahua leopard frogs were replaced by bullfrogs and centrarchid fish. Sixteen of 19 localities where Chiricahua leopard frogs occurred lacked nonnative vertebrates. All historical frog localities that lacked Chiricahua leopard frogs supported nonnative vertebrates. At the three sites where Chiricahua leopard frogs occurred with nonnatives (one site with green sunfish, Lepomis cyanellus, and two with tiger salamanders), either the frog or the nonnative vertebrate was rare. In two of the three cases, frogs may have derived from other nearby localities (Rosen et al. 1996), and thus may have represented immigrants rather than a viable population.

In the San Rafael Valley, Arizona, Chiricahua leopard frogs were found only at sites that lacked nonnative fish and bullfrogs (Snyder et al. 1996). In the White Mountains of Arizona, disappearance of Chiricahua leopard frogs from most historical localities correlated with the appearance of tiger salamanders and nonnative crayfish (Fernandez and Bagnara 1995). Crayfish were found to prey upon Chiricahua leopard frog larvae, metamorphs, and adults. Crayfish recently spread to the breeding pond of one of the last and possibly the most robust populations of Chiricahua leopard frogs in the White Mountains, Arizona (M. Sredl, pers. comm. 1999, Fernandez and Rosen 1998).

Sredl and Howland (1994) noted that Chiricahua leopard frogs were nearly always absent from sites supporting bullfrogs and nonnative predatory fish; however, Rosen et al. (1996) suggested further study was needed to evaluate the effects of mosquitofish, trout, and catfish on frog presence. Rosen et al. (1996) suspected that catfish would almost always exclude Chiricahua leopard frogs, and that trout may exclude leopard frogs.

In contrast to nonnative aquatic vertebrates, numerous species of native fish, the Sonoran mud turtle ( Kinosternon sonoriense ), other species of native ranid frogs, and native garter snakes (Rosen et al. 1996, Platz and Mecham 1979) commonly coexist with the Chiricahua leopard frog. Tiger salamanders are native to the following portions of the Chiricahua leopard frog's range: San Rafael Valley in southeastern Arizona ( Ambystoma tigrinum stebbinsi ), the northern portion of the species' range ( Ambystoma tigrinum nebulosum ), and the mountains of Sonora, Chihuahua, and Durango ( Ambystoma rosaceum ). Native fishes, such as trout ( Oncorhynchus ), chub ( Gila ), and topminnow ( Poeciliopsis ), also occur within the range of the Chiricahua leopard frog.

The Rio Grande leopard frog ( Rana berlandieri ) is a recent introduction to southwestern Arizona, (Platz et al. 1990). Although the species does not presently occur within the range of the Chiricahua leopard frog, the Rio Grandes leopard frog is rapidly expanding its distribution and currently occurs as far east as the Phoenix area (Rorabaugh et al. in prep.). If it continues to spread eastward, the ranges of the Rio Grande and Chiricahua leopard frogs may overlap in the future. This large, introduced leopard frog might prey on small Chiricahua leopard frogs (Platz et al. 1990), and tadpoles of the two species may compete.

In June 1994, a die-off of Chiricahua leopard frogs occurred at a stock tank in the Chiricahua Mountains, Arizona, that reduced the frog population from 60-80 adults to fewer than 10 (Sredl et al. 1997). Analysis of dead and moribund frogs and water from the tank indicated that disease was unlikely to be the cause of the die-off, however, levels of hydrogen sulfide were high enough to be toxic to wildlife. The authors suspected that high detritus loads (including cattle feces), low water levels, high water temperature, and low concentrations of dissolved oxygen created a suitable environment for sulphur-producing bacteria that produced toxic levels of hydrogen sulfide. Chiricahua leopard frogs were not found at this site in 1998.

The disease Postmetamorphic Death Syndrome (PDS) was implicated in the extirpation of Chiricahua leopard frog populations in Grant County, New Mexico, as well as in other frog and toad species (Declining Amphibian Populations Task Force 1993). All stock tank populations of the Chiricahua leopard frog in the vicinity of Gillette and Cooney tanks in Grant County disappeared within a 3-year period, apparently as a result of PDS (Declining Amphibian Populations Task Force 1993). The syndrome is characterized by death of all or most recently metamorphosed frogs in a short period of time. Dead or moribund frogs are often found during or immediately following winter dormancy or unusually cold periods. The syndrome appears to spread among adjacent populations causing regional loss of populations or metapopulations. Evidence suggests that PDS may also be present in the Santa Rita and Pajarito mountains, Arizona. Although winter die-offs are not documented, Steve Hale (Tucson, AZ, pers. comm. 1994) observed very few Chiricahua leopard frogs in the spring, suggesting that frogs are dying during the winter months. The apparent post-metamorphic death of the Tarahumara frog was documented in southern Arizona and northern Sonora (Hale et al. 1995, Hale and Jarchow 1988), and numbers of Ramsey Canyon leopard frogs declined in the Huachuca Mountains, Arizona, during the winters of 1997-1998 and 1998-1999.

Arsenic poisoning may be a contributing factor in PDS (Hale and Jarchow 1988). Elevated arsenic levels may have contributed to the extirpation of the Tarahumara frog at a site in northern Sonora (Hale and Jarchow 1988). Arsenic often occurs at high levels near sulfitic mine tailings and may be leached by rainfall containing elevated levels of sulfate (Hale and Jarchow 1988). Rainfall near Elgin in southeastern Arizona contained high levels of sulfate, probably due to emissions from copper smelters in Cananea and Nacozari, Sonora, and Douglas, Arizona (Blanchard and Stromberg 1987). The smelters at Cananea and Douglas are no longer in operation.

The size of the Chiricahua leopard frog population in Sycamore Canyon in the Pajarito Mountains of Arizona appears to vary greatly from year to year. This annual variation in population size may be attributable, in part, to cadmium toxicity (Hale and Jarchow 1988). A likely source of cadmium in Chiricahua leopard frog habitat is emissions from copper smelters at Cananea and Nacozari, Sonora (Hale and Jarchow 1988, Blanchard and Stromberg 1987). Elevated levels of cadmium also occur in and near tailings of copper, lead, and zinc mines (Peterson and Alloway 1979). Cadmium may be mobilized and deposited into stream courses through rainfall.

From 1980 to 1985, Chiricahua leopard frogs were abundant in Sycamore Canyon only at Hank and Yank Tank and in the creek immediately downstream of it. In May 1982 the ratio of zinc to cadmium in this reach was 5 to 30 times that of downstream reaches where frogs were absent or very rare (Hale and Jarchow 1988). Cumulative leaching and deposition in drainages likely results in elevated concentrations of cadmium in downstream reaches. Thus, stream headwaters and springs, such as Hank and Yank Tank, may be important refugia for frogs during times when toxic conditions exist in downstream reaches. Decreased zinc to cadmium ratios may have also contributed to the extirpation of the Tarahumara frog from one site in southern Arizona and three sites in northern Sonora (Hale and Jarchow 1988).

Other contaminants or pathogens may also be contributing to the decline of the Chiricahua leopard frog. Lips (1998) documented reduced abundance and skewed sex ratios of two anuran species, and dead and dying individuals of six other amphibian species in Puntarenas Province, Costa Rica. She attributed these changes to biotic pathogens or chemicals, or the combined effects of environmental contamination and climate change. Toxic agrochemicals may have been transported via winds and the atmosphere over long distances to the remote sites studied in Costa Rica. Her observations are also consistent with a pathogen outbreak, and recent evidence suggests a chytridiomycete skin fungi may be responsible for the declines (Longcore et al. 1999, Berger et al. 1998). Lips (1998) noted that declines in her study area are similar to those reported for Monteverde, Costa Rica, the Atlantic coast of Brazil, and Australia. Amphibian decline in these areas has spread wave-like across the landscape, suggestive of pathogen dispersal. Chytrid fungi have recently been shown to be associated with amphibian declines in Panama and Queensland, Australia (Berger et al. 1998); the authors hypothesize that it is the proximate cause of amphibian decline in these areas. Chytrid fungi have also been found in captive arroyo toads, Bufo californicus , in California, cricket frogs, Acris crepitans , in Illinois, American toads, Bufo americanus , in Maryland, and in Arizona, lowland leopard frogs, Rana yavapaiensis , Rio Grande leopard frogs, Ramsey Canyon leopard frogs, and four populations of Chiricahua leopard frogs (M. Sredl, pers. Comm., 2000; Milius 1998). The role of the fungi in the population dynamics of the Chiricahua leopard frog and these other North American species is as yet undefined; however, it may well prove to be an important contributing factor in observed population decline. Rapid death of recently metamorphosed frogs, typical of post-metamorphic death syndrome, is also characteristic of chytrid infections. Thus, chytrids may have played a role in extirpation of stock tank populations of Chiricahua leopard frog in New Mexico (Declining Amphibian Populations Task Force 1993), as well as overwinter die-offs in the mountains of southern Arizona.

D. The inadequacy of existing regulatory mechanisms. A variety of existing international conventions and law and Federal and State regulations provide limited protection to the Chiricahua leopard frog and its habitat. State regulations prohibit collection or hunting of Chiricahua leopard frogs in Arizona, except under special permit. Collection is not prohibited in New Mexico, and although collecting has not been documented as a cause of population loss, the typically small, geographically isolated populations of this species are extremely vulnerable to collection pressure. Regulations have not been adequate to stem habitat loss and degradation or to address factors such as introduction of nonnative predators.

In Mexico, the collection of threatened species is prohibited. The habitats of the Chiricahua leopard frog and other threatened species are protected from some activities in Mexico. The species is not protected by the Convention on International Trade in Endangered Species of Wild Fauna and Flora, which regulates international trade.

The Lacey Act (16 U.S.C. 3371 et seq. ), as amended in 1982, provides some protection for the Chiricahua leopard frog. This legislation prohibits the import, export, sale, receipt, acquisition, purchase, and engagement in interstate or foreign commerce of any species taken, possessed, or sold in violation of any law, treaty, or regulation of the United States, any Tribal law, or any law or regulation of any State.

The Federal Land Policy Management Act of 1976 (43 U.S.C. 1701 et seq. ) and the National Forest Management Act of 1976 (16 U.S.C. 1600 et seq. ) direct Federal agencies to prepare programmatic-level management plans to guide long-term resource management decisions. In addition, the Forest Service is required to “maintain viable populations of existing native and desired nonnative species” in their planning areas (36 CFR 219.19). These regulations have resulted in the preparation of a variety of land management plans by the Forest Service and the Bureau of Land Management that address management and resource protection of areas that support, or in the past supported, populations of Chiricahua leopard frogs.

At least 47 of 79 localities confirmed as supporting extant populations of the Chiricahua leopard frog from 1995 to the present occur entirely, or in part, on National Forest Lands. Thirty-four extant localities occur entirely, or in part, on the Coronado National Forest, Arizona. Additional localities occur on the Gila, Apache-Sitgreaves, Tonto, and Coconino National Forests. As a result, Forest Service land management plans are particularly important in guiding the management of Chiricahua leopard frog habitat. However, these plans have not always adequately protected this species' habitat. Many activities that affect the Chiricahua leopard frog and its habitat are beyond Forest Service control. For instance, the Forest Service does not have the authority to regulate off-site activities such as atmospheric pollution from copper smelters or other actions that may be responsible for global amphibian declines, including that of the Chiricahua leopard frog. The Forest Service has only limited ability to regulate introductions or stockings of nonnative species that prey on Chiricahua leopard frogs. Despite extensive planning efforts by the Forest Service and implementation of management actions to maintain viable populations of native species on Forest Service lands, loss of Chiricahua leopard frog populations and metapopulations continues.

The National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370a) requires Federal agencies to consider the environmental impacts of their actions. NEPA requires Federal agencies to describe the proposed action, consider alternatives, identify and disclose potential environmental impacts of each alternative, and involve the public in the decision-making process. Federal agencies are not required to select the alternative having the least significant environmental impacts. A Federal action agency may select an action that will adversely affect sensitive species provided that these effects were known and identified in a NEPA document. Most actions taken by the Forest Service, the Bureau of Land Management, and other Federal agencies that affect the Chiricahua leopard frog are subject to the NEPA process.

State and Federal air quality regulations strictly regulate emissions from copper smelters, a major source of atmospheric cadmium and arsenic, pollutants that may adversely affect the Chiricahua leopard frog (Hale and Jarchow 1988). However, a major source of airborne pollutants likely affecting this species has been copper smelters in Cananea and Nacozari, Sonora, which are not subject to the same strict regulations as in the United States (Hale et al. Blanchard and Stromberg 1987).

Wetland values and water quality of aquatic sites inhabited by the Chiricahua leopard frog are afforded varying protection under the Federal Water Pollution Control Act of 1948 (33 U.S.C. 1251-1376), as amended, and Federal Executive Orders 11988 (Floodplain Management) and 11990 (Protection of Wetlands). The protection afforded by these and other Federal laws and regulations discussed herein is inadequate to halt population extirpation and the degradation of the habitat of this species.

The AGFD included the Chiricahua leopard frog on their draft list of species of concern (AGFD 1996); however, this designation affords no legal protection to the species or its habitat. Collection of Chiricahua leopard frogs is prohibited in Arizona, except by special permit. The Chiricahua leopard frog is not a State-listed species, nor is collection prohibited in New Mexico.

The New Mexico Department of Game and Fish adopted a wetland protection policy in which the Department does not endorse nor take any action that would promote any private or public project that would result in a net decrease in either wetland acreage or wetland habitat values. This policy affords only limited protection to Chiricahua leopard frog habitat because it is advisory only; destruction or alteration of wetlands is not regulated by State law.

State of Arizona Executive Order Number 89-16 (Streams and Riparian Resources), signed on June 10, 1989, directs State agencies to evaluate their actions and implement changes, as appropriate, to allow for restoration of riparian resources. Implementation of this regulation may reduce adverse effects of some State actions on the habitat of the Chiricahua leopard frog.

E. Other natural or manmade factors affecting its continued existence. Because of the inherent dynamic nature of southwestern wetland and riparian habitats, coupled with the increased likelihood of extirpation characteristic of small populations, the viability of extant populations of the Chiricahua leopard frog is thought, in many cases, to be relatively short. Approximately 38 of 79 extant localities found from 1995 to the present were located in artificial tanks or impoundments constructed for watering livestock. These environments are very dynamic due to flooding, drought, and human activities such as maintenance of stock tanks. In addition, stock tank populations are often quite small. Small populations are subject to extirpation from random variations in such factors as the demographics of age structure or sex ratio, and from disease and other natural events (Wilcox and Murphy 1985). Inbreeding depression and loss of genetic diversity may also occur in small populations of less than a few hundred individuals; such loss may reduce the fitness of individuals and the ability of the population to adapt to change (Frankel and Soule 1981). Both of these genetic considerations result in an increased likelihood of extirpation (Lande and Barrowclough 1987).

The dynamic nature of stock tank habitats and the small size of the populations that inhabit them suggest that many of these populations are not likely to persist for long periods. As an example, siltation and drought dramatically reduced the extent of aquatic habitat at Rosewood Tank in the San Bernardino Valley, Arizona (Matt Magoffin, San Bernardino National Wildlife Refuge, pers. comm. 1997). Aquatic habitat was reduced in June 1994, to a surface area of approximately 60 square feet (sq. ft) that supported a population of approximately eight adult Chiricahua leopard frogs and several hundred tadpoles. In this instance, the landowner was only able to prevent the population from being extirpated by repeated efforts to intervene on behalf of the Chiricahua leopard frog in trucking water to the site, rebuilding the tank, and constructing a small permanent pond to maintain habitat for the species.

Some larger populations occurring in stream courses or other non-stock tank habitats also experience dramatic changes in population size, such as in Sycamore Canyon in the Pajarito Mountains, Arizona, and on the eastern slope of the Santa Rita Mountains, Arizona (S. Hale, pers. comm. 1994). These habitats, although much larger than a stock tank, experience dramatic environmental phenomena such as floods, drought, and in the case of Sycamore Canyon, varied zinc to cadmium ratios, all of which may cause populations to crash. This finding suggests that even these relatively large and natural habitats and the frog populations they support are very dynamic. As a result of this dynamic nature, leopard frog populations are susceptible to extirpation.

As discussed in the “Background” section of this proposed rule, metapopulations are more likely to persist over time than small, more isolated populations, because individuals and genetic material can be exchanged among populations within the metapopulation, resulting in increased recolonization rates and fewer potential genetic problems. To define metapopulations of the Chiricahua leopard frog, some knowledge of the ability of this species to move among aquatic sites is required. Although the ability of the Chiricahua leopard frog to move among aquatic sites needs some additional study, the Chiricahua leopard frog is considered a highly aquatic species (Stebbins 1985) that may not travel as far from water as other leopard frog species. Amphibians, in general, have limited dispersal and colonization abilities due to physiological constraints, limited movements, and high site fidelity (Blaustein et al. 1994). Dispersal of Chiricahua leopard frogs probably occurs most often along drainages, particularly those with permanent water, but also along intermittent stream courses and overland during summer rains.

Where several populations of Chiricahua leopard frog occur in close proximity (separated by no more than a few kilometers), functional metapopulations may exist. Two areas of the Galiuro Mountains of Arizona support a total of 12 extant localities, including 4 localities in the northern end of the range and 8 in the southern end. A similar cluster of seven localities occurs in the Dragoon Mountains, Arizona. Metapopulations may exist elsewhere, for instance, in Arizona in the southwest quarter of the San Rafael Valley, and in the Crouch Creek area, and in New Mexico, east and northeast of Hurley, and in the Frieborn Canyon-Dry Blue Creek area. However, with the exception of those in the Dragoon and southern Galiuro mountains, metapopulations of which we are aware probably consist of five or fewer localities. Metapopulations, particularly the larger examples, are critical to long-term survival of the species. Also critical are large populations, such as on the Tularosa River, New Mexico, and Sycamore Canyon and associated tanks in the Pajarito Mountains, Arizona, which are expected to experience relatively low extinction rates and may serve as source populations for colonization of nearby suitable habitats.

In making the determination to propose this rule, we carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by the Chiricahua leopard frog. Based on this evaluation, our preferred action is to list the Chiricahua leopard frog as threatened. The Act defines an endangered species as one that is in danger of extinction throughout all or a significant portion of its range. The Act defines a threatened species as any species likely to become endangered within the foreseeable future.

Within its range in the United States, the Chiricahua leopard frog is believed absent from a relatively high percentage of historical localities, and has undergone regional extirpation in areas where it was once well-distributed. The status of populations in Mexico are unknown, but the species is considered as threatened by the Mexican Government. The species is not in immediate danger of extinction, because at least a few relatively robust populations and metapopulations still exist (e.g., Tularosa River, Dragoon Mountains, Galiuro Mountains), and 79 extant localities have been documented from 1995 to the present. However, if present threats and declines continue, the Chiricahua leopard frog is likely to become an endangered species in the foreseeable future (Painter 1996, Rosen et al. 1996). Therefore, we believe that the Chiricahua leopard frog meets the definition of a threatened species under the Act.

Critical habitat is defined in Section 3 of the Act as—(I) the specific areas within the geographic area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management consideration or protection and; (ii) specific areas outside the geographic area occupied by a species at the time it is listed, upon determination that such areas are essential for the conservation of the species. “Conservation” means the use of all methods and procedures that are necessary to bring an endangered species or a threatened species to the point at which listing under the Act is no longer necessary.

Section 4(b)(2) and 4(b)(6)(C) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be endangered or threatened. The designation of critical habitat is not prudent (50 CFR 424.12(a)(1)) 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, or (2) such designation would not be beneficial to the species.

Critical habitat designation would require publishing in the Federal Register the locations of all or the most important Chiricahua leopard frog populations and habitats. As discussed under Factor B in the “Summary of Factors Affecting the Species,” the Chiricahua leopard frog is potentially threatened by collection. Publishing locality data would facilitate collection as it would provide collectors with specific, previously unknown information about the location of this species. Collection has contributed to the decline of other rare anurans, including the endangered Wyoming toad ( Bufo hemiophrys baxteri ), threatened California red-legged frog ( Rana aurora draytonii ) (Stebbins and Cohen 1995, Jennings and Hayes 1995), and a number of other anuran species worldwide (Vial and Saylor 1993).

Scientists have not documented collection, to date, as a cause of population decline or loss in the Chiricahua leopard frog. However, such collection would be difficult to document. Collection of large adult frogs for food, fish bait, scientific, or other purposes, particularly after a winter die-off or other event that severely reduces the adult population, could hasten the extirpation of small populations. Recognition of the Chiricahua leopard frog as a threatened species may increase its value to collectors. The Chiricahua leopard frog is an attractive, often bright green frog that we believe would do quite well in captivity. The Northern leopard frog, Rana pipiens , a very similar animal, is common in the pet trade. We are aware of internet trade in “leopard frogs,” which could include Chiricahua leopard frogs. Chiricahua leopard frogs should be as attractive as the Northern leopard frog to collectors, or perhaps more so because of their rarity.

Import and export data provided by our Division of Law Enforcement document a substantial amount of international trade in Rana spp. Specifically, for the period of January 1, 1996, to October 31, 1998, 9,997 live individuals of Rana spp. were imported into and 51,043 live individuals were exported from the United States. Because shipments of wildlife from the United States are not as closely monitored as imports, and are sometimes not recorded to the genus level (this is also true for imports as well), the number of exports documented for this timeframe is likely an under representation of what actually occurred.

In 1995, many large adult Ramsey Canyon leopard frogs (which are very similar in appearance and closely related to the Chiricahua leopard frog) were illegally collected from a site in the Huachuca Mountains, Arizona, following publicity about the rare status of the frog. The locality, which occurs within the range of the Chiricahua leopard frog, has been considered extirpated since 1997. Collection probably contributed to its demise. Following newspaper publicity regarding our proposal to list the Arroyo toad ( Bufo microscaphus californicus ), a former U.S. Forest Service employee found that a main pool near the road, formerly with a high density of calling males, was absent of males, some previously tagged. The tagged males could not be located elsewhere, and their absence was not thought to be due to natural movement or predation (Nancy Sandburg, U.S. Forest Service pers. comm. 1999). Publishing maps for the best populations and habitats of Chiricahua leopard frog could cause or contribute to similar declines or extirpations. The evidence shows, therefore, that threat of collection would increase substantially if we disclosed specific location information for all or the most important Chiricahua leopard frog populations and habitats.

Publishing locality data could also facilitate vandalism of habitats where Chiricahua leopard frogs occur. Platz (1995) noted the disappearance of large tadpoles at a Ramsey Canyon leopard frog site in Brown Canyon, Huachuca Mountains, in 1991-1992, and suggested their disappearance may have, in part, resulted from an act of vandalism. Many Chiricahua leopard frog habitats are small and could be easily contaminated with toxicants or taken over by nonnative predators, resulting in extirpation of frog populations. The majority of extant populations also occur on public lands (primarily National Forest lands) with public access routes that lead to the populations or pass nearby. Public access to these sites is reasonably expected to facilitate collections or vandalism.

Publishing maps of Chiricahua leopard frog sites could also facilitate disease transmission. Chytridiomycosis and other amphibian diseases can be spread by transporting mud, water, or frogs from one site to another. If a person visits a site where disease is present and then travels to another site, disease can be spread via muddy or wet boots, nets, vehicles or other equipment (Speare et al. 1998, David Green, National Wildlife Health Center, Madison, Wisconsin, pers. comm. 2000). Although other hypotheses have been proposed (Carey et al. 1999), Daszak et al. (1999) find that the pattern of amphibian deaths and population declines associated with chytridiomycosis is consistent with an introduced pathogen. The chytrid fungus is not known to have an airborne spore, but rather disperses among individuals and populations via zoospores that swim through water or during contact between individual frogs (Daszak 1998). If chytridiomycosis is a recent introduction on a global scale, then dispersal by way of global or regional commerce; translocation of frogs and other organisms; and travel among areas by anglers, scientists, tourists, and others are viable scenarios for transmission of this disease (Daszak et al. 1999, Halliday 1998). Until the spread of chytridiomycosis is better understood, and the role of this and other diseases in the decline of the Chiricahua leopard frog is clarified, visitation of Chiricahua leopard frog sites should not be encouraged. Publishing maps of Chiricahua leopard frog sites could facilitate visitation by collectors or those who want to view the frog. Increased visitation increases the risk of disease transmission.

The prohibition of destruction or adverse modification of critical habitat is provided under section 7 of the Act and, therefore applies only to actions funded, authorized, or carried out by Federal agencies. “Destruction or adverse modification” is defined under 50 CFR 402.02 as an action that appreciably diminishes the value of critical habitat for the survival and recovery of the listed species. Similarly, section 7 prohibits jeopardizing the continued existence of a listed species. “Jeopardize the continued existence” is defined as an action that would be expected to reduce appreciably the likelihood of survival and recovery of a listed species.

Given the similarity in the above definitions, in most cases Federal actions that would appreciably reduce the value of critical habitat for the survival and recovery of the Chiricahua leopard frog would also reduce appreciably the likelihood of survival and recovery of the species. The Chiricahua leopard frog occurs mostly in relatively small populations that are highly vulnerable to extirpation. Habitat alteration of a severity to result in destruction or adverse modification of critical habitat would likely also jeopardize the continued existence of the species. Similarly, reasonable and prudent alternative actions that would remove the likelihood of jeopardy would also remove the likelihood of destruction or adverse modification of critical habitat. While a critical habitat designation for habitat currently occupied by this species would not be likely to change the section 7 consultation outcome because an action that destroys or adversely modifies such critical habitat would also be likely to result in jeopardy to the species, in some situations section 7 consultation might be triggered only if critical habitat is designated. Examples could include unoccupied habitat or occupied habitat that may become unoccupied in the future. However, we investigated whether designating unoccupied habitat would provide some potential benefit. We are aware of only a few unoccupied sites that would be essential for the conservation of the Chiricahua leopard frog; the vast majority of essential sites are occupied. As a result, we see little benefit from the designation of unoccupied habitat. Designating critical habitat may also provide some educational or informational benefits. However, any added benefit would be outweighed by the publication of these additional areas in detailed maps that would subject the species to the threat of collecting, vandalism, and disease transmission.

In balancing the benefits of critical habitat designation against the increased threats, we believe the records show that few, if any, benefits would be derived in this particular instance from designation of critical habitat. We believe that any potential benefits of critical habitat designation, beyond those afforded by listing, when weighed against the negative impacts of disclosing site-specific localities, does not yield an overall benefit. We, therefore, determine that critical habitat designation is not prudent for the Chiricahua leopard frog.

As a means to promote conservation efforts on behalf of the Chiricahua leopard frog, we are proposing a special rule under section 4(d) of the Act. Under the rule, take of Chiricahua leopard frog caused by livestock use of or maintenance activities at livestock tanks located on private or tribal lands would be exempt from section 9 of the Act. The rule targets tanks on private and tribal lands to encourage landowners and ranchers to continue to maintain these tanks that are not only important for livestock operations, but also provide habitat for leopard frogs. Livestock use and maintenance of tanks on Federal lands will be addressed through the section 7 process.

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 practices. Recognition through listing encourages and results in conservation actions by Federal, State, and private agencies, groups, and individuals. The Act provides for possible land acquisition and cooperation with the States and requires that recovery actions be carried out for all listed species. The protection required of Federal agencies and the prohibitions against taking and harm are discussed, in part, below.

Section 7(a) of the Act, as amended, requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is designated or proposed. 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 with us on any action that is likely to jeopardize the continued existence of a proposed species or result in destruction or adverse modification of proposed critical habitat. If a species is listed or critical habitat is designated subsequently, Section 7(a)(2) requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with us.

The Chiricahua leopard frog occurs on Federal lands managed by the Coronado, Apache-Sitgreaves, Tonto, Coconino, and Gila National Forests; the Bureau of Land Management; and our refuges. Examples of Federal actions that may affect the Chiricahua leopard frog include dredge-and-fill activities, grazing programs, construction and maintenance of stock tanks, logging and other vegetation removal activities, management of recreation, road construction, fish stocking, issuance of rights-of-ways, prescribed fire and fire suppression, and discretionary actions authorizing mining. These and other Federal actions require Section 7 consultation if the action agency determines that the proposed action may affect listed species.

Development on private or State lands requiring permits from Federal agencies, such as permits from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act, would also be subject to the Section 7 consultation process. Federal actions not affecting the species, as well as actions that are not federally funded or permitted would not require Section 7 consultation. However, prohibitions under Section 9 of the Act (discussed below) would apply.

Important regional efforts are currently under way to establish viable metapopulations of Chiricahua leopard frogs. We are currently working with the Arizona Game and Fish Department, New Mexico Department of Game and Fish, and several Federal and private landowners in these efforts. An ongoing regional conservation planning effort in the San Bernardino Valley, Arizona, being undertaken by this agency, the Forest Service, State, and private individuals is a good example of such efforts. Owners of the Magoffin Ranch, in particular, have devoted extensive efforts to conserving leopard frogs and habitat at stock tanks on that ranch. As part of the San Bernardino Valley conservation effort, a high school teacher and his students rear tadpoles in Douglas, Arizona, and established populations of Chiricahua leopard frogs in small constructed wetlands at Douglas area public schools (Biology 150 Class, Douglas High School 1998). In another regional conservation effort, the Tonto National Forest, Arizona, Arizona Game and Fish Department, and the Phoenix Zoo have developed a Chiricahua leopard frog “conservation and management zone” in which frogs have been reared and released into the wild to establish new populations (Sredl and Healy 1999). A similar regional conservation plan, involving The Nature Conservancy, Randy Jennings, and the New Mexico Game and Fish Department, is under way on the Mimbres River, New Mexico.

We commend the individuals involved in these efforts. These regional conservation plans are proving grounds for developing the techniques to recover the species rangewide. As such, we strongly support them and encourage others to develop regional conservation plans; we will provide assistance and use our authorities to help develop and implement site-specific conservation activities for this species. If the Chiricahua leopard frog is listed, handling, rearing, translocation or other forms of direct or incidental take resulting from conservation activities can continue under section 10 permits from us. Incidental take associated with conservation plans may also be permitted pursuant to an incidental take statement in a biological opinion for activities under Federal jurisdiction. If the species is listed, we will work with the individuals involved in these conservation efforts to ensure that permits are issued promptly and that the process does not interrupt or hinder ongoing recovery actions.

We are also exploring other opportunities to permit conservation activities. In particular, we encourage the public to comment on the desirability of promulgating a special rule under section 4(d) of the Act that would exempt from the section 9 take prohibitions activities associated with conservation plans. Eligible conservation plans would need to promote recovery and be approved by us and the appropriate State game and fish agency. Activities potentially addressed under such a plan, and which would be exempt from the section 9 take provisions, could include, but are not limited to, construction of new habitats or modification of existing habitats, fencing, enhancement or control of vegetation, translocation of frogs, and monitoring of frog populations.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all threatened wildlife. These prohibitions, codified at 50 CFR 17.31, in part, make it illegal for any person subject to the jurisdiction of the United States to take (including harass, harm, pursue, hunt, shoot, wound, kill, trap, or collect, or attempt any such conduct), import or export, transport in interstate or foreign commerce in the course of a commercial activity, or sell or offer for sale in interstate or foreign commerce any threatened species unless provided for under a special rule. To possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally is also illegal. Certain exceptions will apply to persons acting in an agency capacity on the behalf of the Service and to activities associated with cooperative State conservation agencies.

Permits may be issued to carry out otherwise prohibited activities involving threatened wildlife species under certain circumstances. Regulations governing permits are codified at 50 CFR 17.32. Such permits are available for scientific purposes, to enhance the propagation or survival of the species, and/or for incidental take in connection with otherwise lawful activities. For threatened species, permits also are available for zoological exhibition, educational purposes, or special purposes consistent with the purposes of the Act.

Our policy (July 1, 1994; 59 FR 34272) is to identify to the maximum extent practicable at the time a species is listed those activities that would or would not likely constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of the listing on proposed and ongoing activities within a species' range. Based on the best available information, the following are examples of actions that would not likely result in a violation of section 9:

(1) Actions that may affect Chiricahua leopard frog that are authorized, funded, or carried out by a Federal agency when the action is conducted in accordance with an incidental take statement issued by us pursuant to section 7 of the Act;

(2) Actions that may result in take of Chiricahua leopard frog when the action is conducted in accordance with a permit under section 10 of the Act;

(3) Recreational activities that do not destroy or significantly degrade occupied habitat, and do not result in take of frogs;

(4) Release, diversion, or withdrawal of water from or near occupied habitat in a manner that does not displace or result in desiccation or death of eggs, tadpoles, or adults; does not disrupt breeding activities of adults; does not favor introduction of nonnative predators; and does not alter vegetation characteristics at or near occupied sites to an extent that exposes the frogs to increased predation; and

(5) Logging activities that do not result in erosion or siltation of stream beds and other aquatic habitats occupied by Chiricahua leopard frogs, do not adversely affect water quality, and do not denude shoreline vegetation or terrestrial vegetation in occupied habitat.

Activities that we believe could potentially result in “take” of the Chiricahua leopard frog, include, but are not limited to the following:

(1) Unauthorized collection, capture or handling of the species;

(2) Intentional introduction of nonnative predators, such as nonnative fish, bullfrogs, crayfish, or tiger salamanders;

(3) Any activity not carried out pursuant to the proposed special rule (described at the end of this document) in “§ 17.43 Special rules-amphibians” that results in destruction or significant alteration of habitat of Chiricahua leopard frog including, but not limited to, the discharge of fill material, the diversion or alteration of stream flows and aquatic habitats occupied by the species or withdrawal of water to the point at which habitat becomes unsuitable for the species, and the alteration of the physical channels within the stream segments and aquatic habitats occupied by the species;

(4) Water diversions, groundwater pumping, water releases, or other water management activities that result in displacement or death of eggs, tadpoles, or adult frogs; disruption of breeding activities; introduction of nonnative predators; or significant alteration of vegetation characteristics at or near occupied sites. However, pursuant to the proposed special rule for this species, operation and maintenance of livestock tanks on private or tribal lands that result in incidental mortality of frogs would not be considered a violation of section 9;

(5) Discharge or dumping of hazardous materials, silt, or other pollutants into waters supporting the species;

(6) Possession, sale, delivery, transport, or shipment of illegally taken Chiricahua leopard frogs; and

(7) Actions that take Chiricahua leopard frogs that are not authorized by either a permit under section 10 of the Act or an incidental take statement under section 7 of the Act, or are identified as prohibited in the special rule “§ 17.43 Special rules-amphibians” for this species; the term “take” includes harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capture, or collecting, or attempting any of these actions.

In the description of activities above, a violation of section 9 would occur if those activities occur to an extent that would result in “take” of Chiricahua leopard frog. Not all of the activities mentioned above will result in violation of section 9 of the Act; only those activities that result in “take” of Chiricahua leopard frog would be considered violations of section 9. Direct your questions regarding whether specific activities will constitute a violation of section 9 to the Field Supervisor, Arizona Ecological Services Field Office (see ADDRESSES section). Address your requests for copies of the regulations on listed wildlife and inquiries about prohibitions and permits to the U.S. Fish and Wildlife Service, Branch of Endangered Species/Permits, P.O. Box 1306, Albuquerque, New Mexico 87103 (telephone (505)248-6920, facsimile (505)248-6922).

We intend for any final action resulting from this proposal to be as accurate and as effective as possible. Therefore, we solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule. We particularly seek comments concerning:

(1) Biological, commercial trade, or other relevant data concerning any threat (or lack thereof) to the Chiricahua leopard frog;

(2) The location of any additional populations of Chiricahua leopard frog and the reasons why any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act;

(3) Additional information concerning the range, distribution, and population size of the Chiricahua leopard frog;

(4) Current or planned activities in the subject area and their possible impacts on the Chiricahua leopard frog; and

(5) Additional information pertaining to the promulgation of a special rule to exempt from the section 9 take prohibitions livestock use of and maintenance activities at livestock tanks located on private or tribal lands. Although beyond the scope of the currently proposed special rule, we also solicit comment on the desirability of a special rule that would exempt from the section 9 take prohibitions activities associated with conservation plans that promote recovery and are approved by us and the appropriate State game and fish agency.

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. In some circumstances, we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish for us to withhold your name and/or address, you must state this request 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. Comments and materials received will be available for public inspection, by appointment, during normal business hours (see ADDRESSES section).

In making a final decision on this proposed rule, we will take into consideration the comments and any additional information we receive. The final rule may differ as a result of this process.

The Act provides for one or more public hearings on this proposal, if requested. We must receive requests within 45 days of the date of publication of the proposal in the Federal Register . Such requests must be made in writing and be addressed to the Field Supervisor (see ADDRESSES section).

Executive Order 12866 requires each agency to write regulations and notices that are easy to understand. We invite your comments on how to make this proposed rule easier to understand including answers to questions such as the following: (1) Are the requirements in the proposed rule clearly stated? (2) Does the proposed rule contain technical language or jargon that interferes with the clarity? (3) Does the format of the proposed rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the description of the proposed rule in the “Supplementary Information” section of the preamble helpful in understanding the notice? What else could we do to make the proposed rule easier to understand?

Send a copy of any comments that concern how we could make this proposed rule easier to understand to the Field Supervisor (see ADDRESSES section).

Prior to publication of the final rule, we will analyze the economic effects of the special rule and will determine whether the special rule is in compliance with the following. We will announce the availability of our analysis in a separate Federal Register notice:

(1) Regulatory Planning and Review

(2) Regulatory Flexibility Act (5 U.S.C. 601 et seq. )

(3) Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))

(4) Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. )

(5) Taking Personal Property Rights (Executive Order 12630)

(6) Federalism (Executive Order 13132)

In accordance with Executive Order 12988, the Department of the Interior's Office of the Solicitor determined that this proposed special rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. The Office of the Solicitor will review the final special rule. We will make every effort to ensure that the final special rule contains no drafting errors, provides clear standards, simplifies procedures, reduces burden, and is clearly written such that litigation risk is minimized.

This proposed rule and special rule does not contain any information collection requirements for which Office of Management and Budget (OMB) approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) is required. An information collection related to the rule pertaining to permits for endangered and threatened species has OMB approval and is assigned clearance number 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 OMB control number. This proposed rule and special rule does not alter that information collection requirement. For additional information concerning permits and associated requirements for threatened species, see 50 CFR 17.32.

We determined that we do not need to prepare Environmental Assessments and Environmental Impact Statements, 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 Endangered Species Act of 1973, as amended. We published a notice outlining the basis for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

A complete list of all references cited in this rule is available upon request from the Arizona Ecological Services Field Office (see ADDRESSES section).

Author: The primary author of this notice is James Rorabaugh (see ADDRESSES section).

We propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: