Legal authority. The Blueberry Promotion, Research, and Consumer Information Order (Order) [7 CFR Part 1218] became effective on August 16, 2000 [65 FR 43961, July 17, 2000]. It was issued under the Commodity Promotion, Research, and Information Act of 1996 (Act) [7 U.S.C. 7401-7425].

USDA has become aware of confusion in parts of the industry over which type of blueberries will be covered by the program. Changing the title of the program, the title of the USABC, and references to blueberries in the Order to “cultivated blueberries” will help eliminate this confusion, while keeping all other provisions of the program the same.

Yes. USDA will consider other names as long as they meet the goal of alleviating the potential for confusion.

No. The program as published on July 17, 2000 in the Federal Register remains the same.

No. The appointment process will begin soon after the Order becomes effective, and assessments will begin on January 1, 2001.

This rule has been determined “not significant” for purposes of Executive Order (E.O.) 12866 and, therefore, has not been reviewed by the Office of Management and Budget (OMB).

In addition, this rule has been reviewed under E.O.12988, Civil Justice Reform. The rule is not intended to have retroactive effect. Section 524 of the Act provides that the Act shall not affect or preempt any other Federal or state law authorizing promotion or research relating to an agricultural commodity.

Under Section 519 of the Act, a person subject to the Order may file a petition with the Secretary of Agriculture (Secretary) stating that the Order, any provision of the Order, or any obligation imposed in connection with the Order, is not established in accordance with the law, and requesting a modification of the Order or an exemption from the Order. Any petition filed challenging the Order, any provision of the Order, or any obligation imposed in connection with the Order, shall be filed within two years after the effective date of the Order, provision, or obligation subject to challenge in the petition. The petitioner will have the opportunity for a hearing on the petition. Thereafter, the Secretary will issue a ruling on a petition. The Act provides that the district court of the United States for any district in which the petitioner resides or conducts business shall have the jurisdiction to review a final ruling on the petition, if the petitioner files a complaint for that purpose not later than 20 days after the date of the entry of the Secretary's final ruling.

In accordance with the Regulatory Flexibility Act (RFA) [5 U.S.C. 601 et seq. ], the Agency is required to examine the impact of the proposed rule on small entities. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be disproportionately burdened. AMS has examined the impact of this proposed rule on small entities.

There are approximately 2,000 producers, 200 first handlers, 50 importers, and 4 exporters of blueberries subject to the program. Most of the producers would be classified as small businesses under the criteria established by the Small Business Administration (SBA) [13 CFR 121.201]. Most importers and first handlers would not be classified as small businesses, and while most exporters are large, we assume that some are small. The SBA defines small agricultural handlers as those whose annual receipts are less than $5 million, and small agricultural producers are defined as those having annual receipts of not more than $500,000 annually.

This proposed amendment to the Order is being issued as a result of comments received during the initial comment period on the first proposed rule. Comments were received in favor of and against changing the name of the proposed blueberry program. After further analysis, we are proposing a change to the name of the program to clarify that the program is for the promotion of cultivated blueberries. The goal of this action is to eliminate confusion among industry members and consumers.

The Act authorizes generic programs of promotion, research, and information for agricultural commodities. Congress found that it is in the national public interest and vital to the welfare of the agricultural economy of the United States to maintain and expand existing markets and develop new markets and uses for agricultural commodities through industry-funded, government-supervised, generic commodity promotion programs.

This rule is intended to amend the Order to revise the name of the program and change references to blueberries in the Order to “cultivated blueberries.” All other provisions of the Order as published on July 17, 2000, in the Federal Register [65 FR 43961] will remain the same. The amendment is not considered a substantial change that will impact the cultivated blueberry industry.

The proposed amendment to the Order would not impose additional recordkeeping requirements on first handlers, producers, or importers or exporters of cultivated blueberries. Therefore, recordkeeping and reporting requirements for the promotion, research, and information program for cultivated blueberries would remain unchanged by the proposed amendment.

There are no relevant federal rules that duplicate, overlap, or conflict with the proposed rule.

We have performed this Initial Regulatory Flexibility Analysis regarding the impact of this proposed amendment to the Order on small entities, and we invite comments concerning potential effects of the proposed amendment.

Under the Order, the USABC will begin collecting assessments on domestic and imported cultivated blueberries in 2001. The funds will be used to expand markets for cultivated blueberries in the United States and abroad. The USABC, which will be appointed by the Secretary of Agriculture (Secretary), will operate under the supervision of the USDA's Agricultural Marketing Service (AMS).

Although the Order states that the program covers only cultivated blueberries and not native blueberries, there has been some confusion in parts of the industry because the title of the program and the name of the Council do not specifically reference cultivated blueberries.

Two comments were received regarding this issue and summarized in the February 15, 2000, proposed rule [65 FR 7657] which contains an analysis of comments on the national research and promotion program for blueberries. The commenters requested that, throughout the proposal and in the Council's title, the term “blueberry” be changed to “cultivated blueberry.” The commenters stated that the generic use of the term “blueberry” was misleading as to the specific type of blueberry and industry segment represented by the proposed Council. The commenters noted that the wild blueberry industry promotes its product as unique from the cultivated blueberry. Though this request for a name change was originally not accepted by USDA, it has come to our attention that such a name change could help to avoid confusion in the industry regarding the types of blueberries covered by the program. Therefore, USDA is proposing that the official title of the program be changed to the “Promotion, Research and Information Order for Cultivated Blueberries” and that the title for the USABC be changed to the “U.S.A. Cultivated Blueberry Council.” In addition, this rule would change all references to “blueberries” in the Order to “cultivated blueberries.”

We welcome written comments on the proposed changes.

For the reasons set forth in the preamble, we are proposing to amend chapter XI of title 7 of the Code of Federal Regulations as follows:

The swine production industry has dramatically changed its business practices and operating procedures over the last generation. Fifty years ago swine production facilities were mainly small operations that typically produced a small number of swine (up to a few hundred). Often the same premises would breed swine, farrow them, wean the offspring, and feed them until they reached slaughter weight. Today, market economies have resulted in specialization that has created separate operations, often on separate premises, for the three stages of swine production—sow herds, nursery herds, and growing or finishing herds. Piglets are born and weaned in a sow herd, moved to a nursery herd for several weeks, then moved to a growing herd where they are fed until they reach slaughter weight after about 180 days.

A single producer may own all three types of facilities, or may have standing relationships with facilities owned by another producer. The result is that swine may move through all three types of herds, often crossing State lines in the process, either without changing ownership, or changing ownership but remaining under the control of a single producer. This swine production model is distinctly different from the commercial model reflected in the current Animal and Plant Health Inspection Service (APHIS) regulations for interstate movement of swine. When those regulations were written, swine (other than valued breeding stock) were generally moved interstate only when a change in ownership occurred, usually when they were shipped to slaughter. Today, millions of swine move interstate while they are raised for slaughter or breeding under a swine production system, and while they remain under the control of a single owner or a group of contractually related owners. In response to these changes in commercial practice, APHIS is reexamining its regulations for moving swine interstate, including requirements for swine identification and health certificates, to determine what requirements should apply to swine moving interstate within a swine production system.

The regulations in subchapter C of chapter I, title 9, Code of Federal Regulations, govern the interstate movement of animals to prevent the dissemination of livestock and poultry diseases in the United States. Parts 71 and 85 (referred to below as the regulations) are included in subchapter C. Part 71 relates to the interstate transportation of animals, poultry, and animal products and includes animal identification requirements for swine moving interstate. Part 85 imposes requirements to control the spread of pseudorabies and includes health certificate and other requirements for the interstate movement of swine. The requirements of parts 71 and 85 that are relevant to this proposed rule are summarized in the following chart. This chart does not include the current requirements for swine moved interstate solely for slaughter, or to livestock markets for sale to slaughter, since this proposed rule would not change those requirements.

Currently, under § 71.19, swine moved in interstate commerce, except for certain swine moving directly to slaughter, must be individually identified by means approved by the APHIS Administrator and listed in § 71.19(b). Under § § 85.7 and 85.8, swine moved in interstate commerce must also meet requirements to prevent the spread of pseudorabies. With a few exceptions, § § 85.7 and 85.8 require that swine moved interstate be accompanied by a certificate that contains certain statements about the animals' pseudorabies status.

This proposed rule would not replace the requirements described above; swine producers (owners of sow farms, nurseries, and finishing operations) could continue to move swine interstate in accordance with these requirements. We are proposing to amend parts 71 and 85 by providing an alternative to these requirements. This alternative could be used by any swine producer who moves swine interstate in the course of operations. Under the proposed alternative, producers could move swine interstate without meeting the requirements for individual identification and certification. However, State animal health officials in both the sending and receiving States would have to agree to allow the movement of swine according to this proposed alternative by signing a swine production health plan, described below. Movement under this proposed alternative would not be allowed to or from States that do not agree to the proposed provisions. In those States that do not agree to this proposed alternative, swine moving interstate would have to move in accordance with the current requirements for individual animal identification and certification.

We anticipate that the proposed alternative would be used primarily for the movement of swine being raised for slaughter, but breeder swine would also be allowed to move under the proposed alternative. However, the proposed alternative would not apply to the final movement of swine to slaughter or to livestock markets for sale to slaughter; such swine would have to meet the current requirements for individual animal identification and certification. We do not propose to allow this new alternative for swine moving in slaughter channels because the alternative is designed for swine moving within a production system where they are under control of a single owner, or a group of contractually connected owners. When swine move to slaughter, they come under the control of a larger and diverse group of markets, transporters, brokers, etc., that do not have consistent and unified control over the animals—a necessary ingredient of the proposed alternative described below.

If this proposal is adopted, producers, under this alternative could move swine interstate from sow farms to nurseries to growing or finishing operations without individually identifying the animals or obtaining health certificates for them if they meet the following requirements, discussed in detail below:

• The producers have a written swine production health plan (SPHP) signed by the producer(s), the acrredited veterinarian(s) for the premises, APHIS, and the States in which the swine production system has premises.

• One or more accredited veterinarians identified in the SPHP will regularly visit each premises in the swine production system to inspect and test swine and will continually monitor the health of the swine in the swine production system. Swine may only be moved interstate if they have been found free from signs of any communicable disease during the most recent inspection of the premises by the swine production system accredited veterinarian.

• The SPHP describes a records system maintained by the producers to document that health status.

• Prior to each interstate movement of swine between premises within a production system, an interstate swine movement report must be sent to APHIS, the accredited veterinarian for the premises, and the sending and receiving States documenting the number, type, and health status of the swine being moved.

A central feature of this proposal would be the SPHP. In effect, the SPHP would be an enduring agreement maintained on file with swine producers, affected States, and APHIS, that takes the place of individual health certificates or State permits that would otherwise be required to accompany the movement of swine.

The SPHP would be a written plan developed for all premises in a swine production system to maintain the health of the swine and detect signs of communicable disease. The SPHP would have to identify all premises that are part of the swine production system and provide for an accredited veterinarian to perform regular inspections of all premises and swine on the premises at intervals no greater than 30 days. The SPHP would also provide that, upon request, APHIS representatives and State animal health officials will have access to any premises in a swine production system to inspect animals and review records. The SPHP would also have to authorize access for the accredited veterinarian(s) hired by the producer and identified in the SPHP, since the accredited veterinarian(s) would be the person(s) primarily responsible for monitoring and documenting the health of the swine through a system of regular visits to inspect and test the swine. The SPHP would also have to document any specific animal health requirements of a State that is a signatory to the SPHP; for instance, if a State requires that swine moved into that State be tested for particular diseases, or that herds be monitored in particular ways, the SPHP would have to contain those requirements. Additionally, the SPHP would have to describe the recordkeeping system of the swine production system. The SPHP would not be valid unless it is signed by all producers in the swine production system, the swine production system accredited veterinarian(s), an APHIS representative, and the State animal health official from each State in which the swine production system has premises. To aid enforcement and compliance, the SPHP would also have to include a declaration by all producers in the swine production system acknowledging that failure to abide by the provisions of the SPHP and the applicable provisions of the regulations constitutes a basis for the cancellation of the SPHP.

As noted above, the SPHP would not be valid unless it is signed by each producer participating in the swine production system, the swine production system accredited veterinarian(s), an APHIS representative, and the State animal health official from each State in which the swine production system has premises. The State animal health official is defined by § 71.1 and § 85.1 as the official responsible for a State's livestock and poultry disease control and eradication programs.

The requirement that a State animal health official must sign and approve each SPHP gives States the opportunity to decide whether or not to allow swine to move from or into their States under the proposed alternative, which eliminates the requirements for a health certificate and individual animal identification. This system would give individual State governments the opportunity to discuss the contents of SPHP's with the owners of swine production systems. This would ensure that each SPHP contains swine health maintenance procedures that will safeguard against health concerns that are of particular importance to that State and ensure that the SPHP is an effective substitute for other paperwork the State might have formerly required, e.g., State certificates of veterinary inspection or health certificates. If a State animal health official does not sign an SPHP, swine in that production system could only move into that State with the paperwork and individual identification currently required by parts 71 and 85.

A State or swine production system could withdraw from an SPHP by giving written notice to the other signatories. Withdrawal shall become effective upon the date specified by the State animal health official or the swine production system in the written notice, but for shipments in transit, withdrawal shall become effective 7 days after the date of such notice. This 7-day delay is proposed to allow arrival of shipments in transit. If one State withdraws from an SPHP signed by other States, a swine production system could not move swine into or from the withdrawing State under the conditions of the canceled SPHP, but the SPHP would remain in effect for the swine production system's premises in other States.

An SPHP could be canceled by the Administrator if the swine production system fails to abide by requirements in the SPHP or other requirements of our regulations. If the Administrator cancels an SPHP, swine in that production system could only move interstate under the other requirements of the regulations, which in many cases would require individual animal identification and health certificates. Finally, the swine production system itself could also cancel an SPHP it has signed at any time, or withdraw one or more of its premises from the SPHP.

The SPHP would have to identify one or more accredited veterinarians who would be under contract with the swine production system to visit all premises within the swine production system at least once every 30 days to conduct general health assessments of the animals. There may be several accredited veterinarians identified in the SPHP, since different veterinarians may serve different premises. These regular visits by the accredited veterinarian(s) would be the primary means of ensuring that swine on a particular premises are maintained in continuing good health, and, therefore, could be safely moved interstate under this alternative. The accredited veterinarian(s) would have to document the health status of swine on a premises with regard to pseudorabies, among other diseases, in records created by the accredited veterinarian and kept by the producer; e.g., a herd inventory with notations documenting the health of the inventoried animals. These records and the proposed interstate swine movement report (ISMR), discussed below, will serve to document the health of animals, rather than individual health certificates.

The system of records that would be required is a crucial part of this proposal. It must be effective enough to replace the current requirement for individual identification of swine. Individual swine identification is an important tool used in efforts to trace the movement of diseased swine and identify premises affected by the disease. In order for a records system to substitute for individual animal identification, records of the operations on the premises ( e.g., the way animals are assigned to pens and the extent to which different lots are commingled) must allow any animal to be traced back to its previous premises without benefit of individual animal identification. The receiving premises must not commingle swine received from different premises in a manner that prevents identification of the premises that sent particular swine or groups of swine. We propose that this may be achieved by use of permanent premises or individual identification mark on animals, by keeping groups of animals received from one premises physically separate from animals received from other premises, or by any other effective means. APHIS would not approve an SPHP unless it described a records system that would adequately document the health of animals on a premises and allow traceback of animals from one premises to another.

We would not dictate the exact type of recordkeeping system that must be used, but the system chosen would need to allow complete traceback of any animal to the previous premises. There are several approaches producers might take to maintain an adequate records system. First, they might choose to use permanent premises or individual animal identification, coupled with shipping records that record the movements of each animal. (While individual animal identification would not be required by this proposal, it could be employed by swine production systems that choose to use it.) Alternatively, all animals on a premises might be marked with a permanent premises identification mark. When the animals are moved to another premises, this mark would indicate which premises they came from. Another approach could be to move animals in intact groups and maintain the groups separately on the new premises, with appropriate records indicating where each group of animals originated. This proposal would allow producers to use any of these approaches or any other effective system that maintains records adequate to trace animals back to their earlier premises.

We also propose to require producers to maintain in their recordkeeping systems copies of the SPHP and all ISMR's that relate to their premises, as well as copies of any reports that the accredited veterinarian issues documenting the health status of the swine on the premises. These records would have to be kept for 3 years after their creation, to provide a historical record in case it is necessary for APHIS to investigate violations of the regulations.

We also propose that the swine production system would have to notify its accredited veterinarian(s), APHIS, and State regulatory officials in the States of origin and destination when swine are ready to be moved interstate. The producer would do this by sending these signatories an ISMR prior to each time swine are moved interstate. APHIS is exploring the possibility that, in some cases, the ISMR could be in electronic rather than a paper form, making it very easy for a producer to meet the ISMR requirement. The ISMR would have to contain the name of the swine production system; the name, location, and premises identification number of the premises from which the swine are to be moved and the premises to which the swine will be moved; the date of movement; and the number, age, and type ( e.g., feeder pigs, market hogs, culled sows and boars) of swine to be moved. The ISMR would also have to contain a description of any individual or group identification associated with the swine, the name of the accredited veterinarian who regularly inspects animals on the premises, the pseudorabies status under part 85 of the herd from which the swine are moved, and an accurate statement that swine on the premises have been inspected and found free from signs of communicable disease by the accredited veterinarian within the past 30 days.

The United States Department of Agriculture and the Food and Drug Administration are currently supporting various initiatives to encourage livestock industries to expand individual identification of animals, in order to assist these agencies in their programs addressing food safety and animal health issues. Agencies addressing these issues often find it useful to be able to trace an animal back from slaughter, through all its intermediate locations, to its farm of origin. One way to provide this tool is to apply a unique identification to each animal soon after birth, and maintain databases of records documenting the movement of each animal until the time of its slaughter or other disposal.

APHIS is involved in testing this lifelong animal identification approach by means of several projects and pilots with groups such as the Livestock Conservation Institute, the dairy industry's National Farm Animal Identification and Records project, various State governments, and other industry associations. However, the current proposal provides an alternative means to reach the same goal, i.e., to provide a way to trace swine from slaughter back to the farm of origin, when necessary. To ensure that such traceback is possible, the proposal uses a combination of individual animal identification (required when swine make their final interstate movement to slaughter) along with other records and forms discussed in this proposal ( e.g., swine production system records and interstate swine movement reports). APHIS remains committed to supporting voluntary industry efforts to adopt universal individual animal identification, but also supports providing alternative tools that provide the information needed for successful traceback of animals.

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

The Regulatory Flexibility Act (5 U.S.C. 603 et seq. ) requires agencies to analyze the economic effects of our rules on small entities. Our analysis follows.

This proposed rule would offer an alternative to the current requirements for moving swine interstate. 1 Under the proposal, producers within a single production system ( e.g., owners of sow farms, nurseries, and growing or finishing operations) could move swine interstate without meeting the current identification and certification requirements if they: (1) Sign a swine health production plan with APHIS and the sending and receiving States; (2) have an accredited veterinarian visit the premises at least once every 30 days to assess and document the general health of the animals; (3) maintain a recordkeeping system sufficiently adequate to enable APHIS or State inspectors to trace an animal back to its herd of origin; and (4) notify the accredited veterinarian, APHIS, and State regulatory officials in the States of origin and destination when swine are ready to be moved interstate. The proposal would not mandate a specific type of recordkeeping system; those in the production system would be free to choose their own system of records, as long as APHIS determines that the system meets the requirements of § 71.19(h)(6) and effectively documents animal health and allows for animal traceback. Also, the formal written agreement would have to be approved and signed by the producers participating in the swine production system, APHIS, and the relevant States.

The primary economic benefits to producers would be that they could avoid the costs of individually identifying animals and obtaining individual animal health certificates for each shipment. Recordkeeping costs under the current requirements and under this proposed alternative would be comparable, although some different records (copies of SPHP's and ISMR's) would be maintained under the proposed alternative.

The proposed rule would benefit U.S. swine producers who move their animals interstate within a single production system. Currently, such systems are used primarily by the largest producers. Producers would be able to realize the benefits of this rule with little or no additional cost, since many have most of the major elements of the proposed recordkeeping system (records indicating the source and disposition of swine and identifying which swine are grouped together) already in place.

As an example of the potential cost savings for producers from not having to individually identify animals, we estimate that the material cost for each identification eartag is about 5 cents and that it takes one person 1 hour to attach about 250 eartags. For a large producer who moves 1 million swine interstate each year with an eartag, the annual savings if the producer no longer uses eartags would be about $50,000 in materials and about $40,000 in labor (assuming a labor rate of $10/hr.). Health certificates are typically issued on a per shipment basis, with one certificate issued for all swine in a truckload. For a producer who moves 1 million swine interstate each year, the annual cost of obtaining health certificates is about $140,000 (assuming 250 swine per shipment and a veterinarian fee of $35 per shipment). 2 Under the proposal, individual identification and health certificates would be replaced by the records kept in accordance with the SPHP and the ISMR's issued for interstate movements attesting that the swine had been found healthy by an accredited veterinarian within the 30 days preceding the interstate movement.

The requirement in the SPHP that an accredited veterinarian must visit the premises at least once every 30 days to assess the general health of the animals would not constitute an additional burden for producers, since most are already visited by a veterinarian on that basis.

As indicated above, the swine production system would eliminate the need for producers to obtain health certificates from accredited veterinarians on an individual shipment basis, a situation which, on the surface, would seem to have a negative impact on the entity's income. However, most accredited veterinarians generate little or no income from issuing health certificates, charging either a nominal fee or no fee at all, especially when they are dealing with producers for whom they provide services on a regular, routine basis. This change should allow them to make more productive use of their time by allowing them to schedule regular health maintenance visits to a facility, rather than visiting when called, possibly at inconvenient times, to issue certificates just prior to movement. This change would also give producers more flexibility in scheduling movements of swine.

The proposed rule would primarily benefit U.S. swine producers who move their animals interstate within a single production system. Currently, such systems are used primarily by the largest producers, most of whom do not appear to be small in size by U.S. Small Business Administration (SBA) criteria. The SBA considers a hog farm or feedlot small if its annual receipts are $0.5 million or less. We estimate that, of the 114,380 hog and pig operations in the United States, no more than about 4 percent (or 4,575) currently participate in multi-State production systems and, of those that do participate, most rank among the industry's largest producers. 3 Census data from the National Agricultural Statistics Service (NASS) indicate that, in 1997, the per farm average value of pigs and hogs sold for the top 4 percent of U.S. farms was in excess of $0.5 million. 4 NASS' data suggests, therefore, that many of the producers that currently participate in interstate production systems are not small by SBA standards.

The proposed rule could encourage more small producer participation in the future, since it would provide them with an economic incentive to network together into one production system. For some small producers, especially those operating on thin profit margins, this opportunity to reduce costs via production networks could make the difference between economic viability and insolvency. At this time, however, there is no basis to conclude that the number of small producers who might form networks in the future would be substantial.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities.

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) All State and local laws and regulations that are in conflict with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule.

In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the information collection or recordkeeping requirements included in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB). Please send written comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503. Please state that your comments refer to Docket No. 98-023-1. Please send a copy of your comments to: (1) Docket No. 98-023-1, Regulatory Analysis and Development, PPD, APHIS, suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, OCIO, USDA, room 404-W, 14th Street and Independence Avenue, SW., Washington, DC 20250. A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this proposed rule.

This proposed rule would create three new information collection and recordkeeping requirements. The first is the swine production health plan (SPHP) for each participating swine production system. This written plan would be jointly developed and signed by all the swine producers moving swine within a production system, APHIS, and the involved State animal health officials. This plan would be written when a swine production system is established under the regulations and might be amended by mutual consent from time to time.

This proposed rule would also require that swine producers submit a report, the interstate swine movement report, each time swine are moved interstate from one premises to another. This report would list the number and types of animals moved, identify the premises they are moved from and to, and give the date of movement and certain other information about the swine production system. We expect that an online system will be developed in the near future that will allow a producer to enter the necessary data in an electronic form and automatically route it to the required report recipients.

This proposed rule would also require a system of records each participating producer would have to keep to document the health of animals in the herd and the movement of animals between premises in the swine production system. This record system is needed to ensure that only healthy animals are moved and to allow State or APHIS officials to trace animals back to their premises of origin when necessary.

Except for developing the SPHP, most of this burden involves keeping records or submitting reports of movement data that are already kept by producers in one form or another for normal business purposes. Producers who choose to operate under the proposed system would be freed from two other information collection and recordkeeping burdens that apply under the existing regulations—individual animal identification and health certificates required by parts 71 and 85.

We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:

(1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses).

Estimate of burden: Public reporting burden for this collection of information is estimated to average 3 minutes per response.

Respondents: Swine producers operating within swine production systems.

Estimated annual number of respondents: 2,000.

Estimated annual number of responses per respondent: 51.

Estimated annual number of responses: 51,000.

Estimated total annual burden on respondents: 4,500 hours.

It should also be noted that for the purpose of these calculations, we used only the total annual hours necessary to generate the Interstate Swine Movement Reports (4,500 hours), and not the initial 4,000 hours needed to complete the Swine Production Health Plans. The creation of a Swine Production Health Plan is not an annual activity; it is generated only once and then kept on file.

Copies of this information collection can be obtained from: Ms. Laura Cahall, APHIS' Information Collection Coordinator, at (301) 734-5360.

Accordingly, we propose to amend 9 CFR parts 71 and 85 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 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.

We are re-examining the writing style we currently 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.

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. 99-CE-88-AD.” We will date stamp and mail the postcard back to you.

The Luftfahrt-Bundesamt (LBA), which is the airworthiness authority for the Federal Republic of Germany, recently notified FAA that an unsafe condition may exist on certain DG Flugzeugbau GmbH Models DG-500 Elan Series, DG-500M, and DG-500MB sailplanes. The LBA reports an incident where a Model DG-500 sailplane experienced notably higher elevator control stiffness during an aerobatic flight. This situation was the result of the outer aluminum tube moving and slipping within the elevator control support stand.

If the elevator control support stand permits the outer aluminum tube to move, the pilot's capability to use full elevator control deflection could be limited, which could require increased force in moving the elevator control. This could lead to an uncontrolled flight condition.

DG Flugzeugbau has issued Technical Note (TN) No. 348/12 and 843/12, dated October 6, 1999.

The service bulletin includes procedures for:

The LBA classified this service bulletin as mandatory and issued German AD Number 1999-341, dated November 18, 1999, in order to assure the continued airworthiness of these sailplanes in Germany.

These sailplane models are manufactured in Germany and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the LBA has kept FAA informed of the situation described above.

The FAA has examined the findings of the LBA; reviewed all available information, including the service information referenced above; and determined that:

This proposed AD would require you to:

We estimate that the proposed AD affects 10 sailplanes in the U.S. registry.

We estimate the following costs to accomplish the proposed inspection and modification:

The compliance time of this proposed AD is to accomplish the inspection “within the next 30 calendar days after the effective date of this AD” and to accomplish the modification “within the next 120 days after the effective date of this AD.”

We have established the compliance in calendar time instead of hours time-in-service (TIS) because the unsafe condition described by the proposed AD is not directly related to sailplane operation. The chance of this situation occurring is the same for a sailplane with 10 hours time-in-service (TIS) as it would be for a sailplane with 500 hours TIS. A calendar time for compliance will assure that the unsafe condition is addressed on all sailplanes in a reasonable time period.

The German AD requires the inspection before next flight and the modification within 45 days of the effective date of the German AD. We do not have justification to require the proposed inspection before next flight. We use compliance times such as this when we have identified an urgent safety of flight situation. We believe that 30 calendar days will give the owners or operators of the affected sailplanes enough time to have the proposed inspection accomplished without compromising the safety of the sailplanes.

The 120-calendar day compliance time for the proposed modification gives the owners/operators of the affected sailplanes enough time to adequately schedule the work to coincide with other maintenance activities.

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 proposed 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 .

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:

Comments Invited Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy related aspects of the proposal. Communications should identify the airspace docket number and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit, with those comments, a self-addressed stamped postcard on which the following statement is made: “Comments to Airspace Docket No. 99-ANM-10.” The Postcard will be date/time stamped and returned to the commenter. All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in the light of comments received. All comments submitted will be available for examination at the address listed above both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

Any person may obtain a copy of this NPRM by submitting a request to the Federal Aviation Administration, Airspace Branch, ANM-520, 1601 Lind Avenue SW, Renton, Washington 98055-4056. Communications must identify the docket number of this NPRM. Persons interested in being placed on a mailing list for future NPRM's should also request a copy of Advisory Circular No. 11-2A, which describes the application procedure.

The FAA is considering an amendment to Title 14 Code of Federal Regulations, part 71 (14 CFR part 71) by modifying Class E airspace at St. George, UT. A new RNAV SIAP to RWY 34 at St. George Municipal Airport has made this proposal necessary. Additional controlled airspace from 700 feet and 1,200 feet above the surface is required to contain aircraft executing the RNAV RWY 34 SIAP with a TAA design to St. George Municipal Airport. The FA establishes Class E airspace where necessary to contain aircraft transitioning between the terminal and en route environments. The intended effect of this proposal is designed to provide for the safe and efficient use of the navigable airspace. This proposal would promote safe flight operations under IFR at the St. George Municipal Airport and between the terminal and en route transition stages.

The area would be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. Class E airspace areas extending upward from 700 feet or more above the surface of the earth, are published in Paragraph 6005, of FAA Order 7400.9G dated September 1, 1999, and effective September 16, 1999, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order.

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

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

These proposed rules amend 15 CFR part 801 by revising paragraph 801.9(b)(5)(ii) to set forth revised reporting requirements for the BE-93, Annual Survey of Royalties, License Fees, and Other Receipts and Payments for Intangible Rights Between U.S. and Unaffiliated Foreign Persons. The survey is conducted by the Bureau of Economic Analysis (BEA), U.S. Department of Commerce, under the International Investment and Trade in Services Survey Act (P.L. 94-472, 90 Stat. 2059, 22 U.S.C. 3101-3108, as amended). Section 3103(a) of the Act provides that “The President shall, to extent he deems necessary and feasible— * * * (1) conduct a regular data collection program to secure current information * * * related to international investment and trade in services * * *” In Section 3 of Executive Order 11961, as amended by Executive Order 12518, the President delegated the authority under the Act as concerns international trade in services to the Secretary of Commerce, who has redelegated it to BEA.

The BE-93 is an annual survey of U.S. royalty and license fee transactions for intangible rights with unaffiliated foreign persons. The data are needed to support U.S. trade policy initiatives, compile the U.S. international transactions accounts and national income and product accounts, assess U.S. competitiveness in international trade in services, and improve the ability of U.S. businesses to identify and evaluate market opportunities.

Under the proposed rule, reporting in the BE-93 annual survey would be required from all U.S. persons whose total receipts from, or total payments to, unaffiliated foreign persons for intangible rights exceeded $2 million during the reporting year. The proposed exemption level is an increase from the current level of $500,000. The increase is intended to reduce respondent burden, particularly for small companies. The data collected on the BE-93 are disaggregated by country and by type of intangible right.

These proposed rules are not significant for purposes of E.O. 12866.

These proposed rules do not contain policies with Federalism implications sufficient to warrant preparation of a Federalism assessment under E.O. 13132.

These proposed rules contain a collection of information requirement subject to the Paperwork Reduction Act. A request for review of the forms has been submitted to the Office of Management and Budget under section 3507 of the Paperwork Reduction Act.

Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection displays a currently valid OMB Control Number.

Public reporting burden for this collection of information is estimated to vary from less than one hour to 25 hours, with an overall average burden of 4 hours. This includes time for reviewing the instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Comments are requested concerning: (a) Whether the proposed collection of information is necessary for the proper performance of the agency, including whether the information will have practical utility; (b) the accuracy of the burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. Comments should be addressed to: Director, Bureau of Economic Analysis (BE-1), U.S. Department of Commerce, Washington, DC 20230; and to the Office of Management and Budget, O.I.R.A., Paperwork Reduction Project 0608-0017, Washington, DC 20503 (Attention PRA Desk Officer for BEA).

The Chief Counsel for Regulation, Department of Commerce, has certified to the Chief Counsel for Advocacy, Small Business Administration, under the provisions of the Regulatory Flexibility Act (5 U.S.C. 605(b)), that this proposed rulemaking, if adopted, will not have a significant economic impact on a substantial number of small entities. While the survey does not collect data on total sales or other measures of the overall size of businesses that respond to the survey, historically the respondent universe has been comprised mainly of major U.S. corporations. With the proposed increase in the exemption level for the survey from $500,000 to $2 million in covered receipts or payments, even fewer small businesses can be expected to be subject to reporting than in the past. Of those smaller businesses that must report, most will tend to have specialized operations and activities and thus will be likely to report only one type of royalty or license transaction, often limited to transactions with a single partner country; therefore, the burden on them can be expected to be small.

For the reasons set forth in the preamble, BEA proposes to amend 15 CFR Part 801, as follows:

These proposed rules amend 15 CFR Part 801 to set forth revised reporting requirements for the BE-82, Annual Survey of Financial Services Transactions Between Financial Services Providers and Unaffiliated Foreign Persons. The Bureau of Economic Analysis (BEA), U.S. Department of Commerce, will conduct the survey under the International Investment and Trade in Services Survey Act (22 U.S.C. 3101-3108), and under Section 5408 of the Omnibus Trade and Competitiveness Act of 1988 (15 U.S.C. 4908). Section 4(a) of the Act (22 U.S.C. 3103(a)) provides that “The President shall, to the extent he deems necessary and feasible—* * * (1) conduct a regular data collection program to secure current information * * * related to international investment and trade in services * * *; and (5) publish for the use of the general public and United States Government agencies periodic, regular, and comprehensive statistical information collected pursuant to this subsection * * *” In Section 3 of Executive Order 11961, the President delegated authority granted under the Act as concerns international trade in services to the Secretary of Commerce, who has redelegated it to BEA.

The major purposes of the survey are to monitor trade in financial services, analyze its impact on the U.S. and foreign economies, compile and improve the U.S. economic accounts, support U.S. commercial policy on financial services, conduct trade promotion, and improve the ability of U.S. businesses to identify and evaluate market opportunities.

As proposed, BEA will conduct the BE-82 survey in years in which a BE-80 benchmark survey, or census, is not conducted. The last survey was conducted for 1998. The survey will update the data provided on the universe of financial services transactions between U.S. financial services providers and unaffiliated foreign persons. Reporting is required from U.S. financial services providers who have sales to or purchases from unaffiliated foreign persons in all covered financial services combined in excess of $10 million during the reporting year. Financial services providers meeting this criteria must supply data on the amount of their sales or purchases for each covered type of service, disaggregated by country. U.S. financial services providers that have covered transactions of less than $10 million during the reporting year are asked to provide voluntary estimates of their total sales and purchases of each type of financial service.

These proposed rules do not contain policies with Federalism implications sufficient to warrant preparation of a Federalism assessment under E.O. 13132.

These proposed rules are not significant for purposes of E.O. 12866.

These proposed rules contain a collection of information requirement subject to the Paperwork Reduction Act (PRA) and have been submitted to the Office of Management and Budget for review under the PRA.

Notwithstanding any other provisions of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection-of-information subject to the requirements of the Paperwork Reduction Act unless that collection displays a currently valid Office of Management and Budget Control Number.

The survey, as proposed, is expected to result in the filing of reports, containing mandatory or voluntary data, from about 375 respondents. The average burden for completing the BE-82—both the mandatory and voluntary sections—is estimated to be 7 hours. Thus, the total respondent burden of the survey is estimated at 2,600 hours (375 respondents times 7 hours average burden). The actual burden will vary from reporter to reporter, depending upon the number and variety of their financial services transactions and the ease of assembling the data. Thus, it may range from 4 hours for a reporter that has a small number and variety of transactions and easily accessible data, or that reports only in the voluntary section of the form, to 150 hours for a very large reporter that engages in a large number and variety of financial services transactions and has difficulty in locating and assembling the required data. This estimate includes time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Comments are requested concerning: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. Comments should be addressed to: Director, Bureau of Economic Analysis (BE-1), U.S. Department of Commerce, Washington, DC 20230, and to the Office of Management and Budget, O.I.R.A., Paperwork Reduction Project 0608-0062, Washington, DC 20503 (Attention PRA Desk Officer for BEA).

The Chief Counsel for Regulation, Department of Commerce, has certified to the Chief Counsel for Advocacy, Small Business Administration, under provisions of the Regulatory Flexibility Act (5 U.S.C. 605(b)), that this proposed rulemaking, if adopted, will not have a significant economic impact on a substantial number of small entities. The information collection excludes most small businesses from mandatory reporting. Companies that engage in international financial services transactions tend to be quite large. In addition, the reporting threshold for this survey is set at a level that will exempt most small businesses from reporting. The BE-82 annual survey will be required only from U.S. persons with sales to, or purchases from, unaffiliated foreign persons in excess of $10 million during the reporting year, in all covered financial services transactions combined; the exemption level for the previous annual survey, covering 1998, was $5 million. Thus, the exemption level will exclude most small businesses from mandatory coverage. Of those smaller businesses that must report, most will tend to have specialized operations and activities, so they will likely report only one type of transaction; therefore, the burden on them should be small.

For the reasons set forth in the preamble, BEA proposes to amend 15 CFR Part 801, as follows:

These proposed rules amend 15 CFR Part 806.14 to set forth reporting requirements for the BE-577, Direct Transactions of U.S. Reporter With Foreign Affiliate. The Bureau of Economic Analysis (BEA), U.S. Department of Commerce, will conduct the survey under the International Investment and Trade in Services Survey Act (22 U.S.C. 3101-3108) hereinafter, “the Act.” Section 4(a) of the Act requires that with respect to United States direct investment abroad, the President shall, to the extent he deems necessary, and feasible—

(1) Conduct a regular data collection program to secure current information on international capital flows and other information related to international investment and trade in services, including (but not limited to) such information as may be necessary for computing and analyzing the United States balance of payments, the employment and taxes of United States parents and affiliates, and the international investment and trade in services position of the United States; and

(2) Conduct such studies and surveys as may be necessary to prepare reports in a timely manner on specific aspects of international investment and trade in services which may have significant implications for the economic welfare and national security of the United States.

In Section 3 of Executive Order 11961, the President delegated authority granted under the Act as concerns direct investment to the Secretary of Commerce, who has redelegated it to BEA.

The quarterly survey of U.S. direct investment abroad collects data on transactions and positions between U.S.-owned foreign business enterprises and their U.S. parents. The BE-577 is a cut-off sample survey that covers all foreign affiliates above a size-exemption level. The sample data are used to derive universe estimates in nonbenchmark years by extrapolating forward similar data reported in the BE-10, Benchmark Survey of U.S. Direct Investment Abroad, which is taken every five years. The data are used in the preparation of the U.S international transactions accounts, the input-output accounts, and the national income and product accounts. The data are needed to measure the size and economic significance of U.S. direct investment abroad, measure changes in such investment, and assess its impact on the U.S. and foreign economies. The data are disaggregated by country and industry of foreign affiliate.

BEA maintains a continuing dialogue with respondents and with data users, including its own internal users through the Bureau's Source Data Improvement and Evaluation Program, to ensure that, as far as possible, the required data serve their intended purposes and are available from existing records, that instructions are clear, and that unreasonable burdens are not imposed. In reaching decisions on what questions to include in the survey, BEA considered the Government's need for the data, the burden imposed on respondents, the quality of the likely responses ( e.g., whether the data are readily available on respondents' books), and BEA's experience in previous quarterly surveys. Because BEA's proposed changes to the BE-577 are minimal and to a large extent mirror those introduced in connection with the 1999 BE-10 benchmark survey, additional consultations outside the agency, beyond those held last year in conjunction with the benchmark survey design, were not conducted.

BEA is proposing to increase the exemption level for reporting on the BE-577 quarterly survey from $20 million to $30 million. The exemption level is the level of a foreign affiliate's assets, sales, or net income at or below which a Form BE-577 is not required. Thus, if a foreign business is owned 10 percent or more by the U.S. parent, but its total assets, sale or gross operating revenues, and net income all are $30 million (positive or negative) or less, the U.S. parent will not have to report it. The exemption level for the BE-577 survey was last raised following the 1994 benchmark survey and was effective with the quarterly survey covering the second quarter of 1995. The proposed changes would be effective commencing with the reports for the first quarter of 2001.

BEA is proposing a few changes to the report forms themselves. BEA proposes to extend the use of the North American Industry Classification System (NAICS) to the BE-577 survey. NAICS is already being used on all BEA surveys of foreign direct investment in the United States and BEA used NAICS to collect industry information on the 1999 BE-10 benchmark survey of U.S. direct investment abroad. BEA also proposes to modify the detail on affiliated services by type of service by dropping the category for communication services in the by-type breakdown and adding the presumably larger management and consulting and research and development categories. BEA is also proposing improvements in the clarity of the instructions. The changes in format and content of the survey, on balance, do not affect respondent burden.

A copy of the proposed form may be obtained from: Office of the Chief, Direct Investment Abroad Branch, International Investment Division (BE-69(A)), Bureau of Economic Analysis, U.S. Department of Commerce, Washington, DC 20230; phone (202) 606-5566.

These proposed rules are not significant for purposes of E.O. 12866.

These proposed rules do not contain policies with Federalism implications sufficient to warrant preparation of a Federalism assessment under E.O. 13132.

These proposed rules contain a collection of information requirement subject to the Paperwork Reduction Act (PRA) and have been submitted to the Office of Management and Budget for review under the PRA.

Notwithstanding any other provisions of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection-of-information subject to the requirements of the Paperwork Reduction Act unless that collection displays a currently valid Office of Management and Budget control number.

The survey, as proposed, is expected to result in the filing of about 12,500 foreign affiliate reports by an estimated 1,500 U.S. parent companies. A parent company must file one form per affiliate. The respondent burden for this collection of information is estimated to vary from 0.5 hour to 4 hours per response, with an average of 1.25 hours per response, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Because reports are filed 4 times per year, 50,000 responses annually are expected. Thus the total annual respondent burden of the survey is estimated at 62,500 hours (12,500 respondents times 4 times 1.25 hours average burden).

Comments are requested concerning: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. Comments should be addressed to: Director, Bureau of Economic Analysis (BE-1), U.S. Department of Commerce, Washington, DC 20230; and to the Office of Management and Budget, O.I.R.A., Paperwork Reduction Project 0608-0004, Washington, DC 20503 (Attention PRA Desk Officer for BEA).

The Chief Counsel for Regulation, Department of Commerce, has certified to the Chief Counsel for Advocacy, Small Business Administration, under the provisions of the Regulatory Flexibility Act (5 U.S.C. 605(b)), that this proposed rulemaking, if adopted, will not have a significant economic impact on a substantial number of small entities. Few, if any, small U.S. businesses are subject to the reporting requirements of this survey. Although the BE-577 survey does not itself collect data on the size of the U.S. companies that must respond, data collected on related BEA surveys indicate that the U.S. companies that have direct investment abroad tend to be quite large. The exemption level for the BE-577 survey is set in terms of the size of a U.S. company's foreign affiliates (foreign companies owned 10 percent or more by the U.S. company); if a foreign affiliate has assets, sales, or net income greater than the exemption level, it must be reported. Usually, the U.S. parent company that is required to file the report is many times larger than its largest foreign affiliate.

Small U.S. businesses tend to have few, if any, foreign affiliates and the foreign affiliates that they do own are small. With the proposed increase in the exemption level for the BE-577 survey from $20 million to $30 million (stated in terms of the foreign affiliate's assets, sales, and net income), even fewer small U.S. businesses will be required to file reports for their foreign affiliates. The estimated annual cost of a U.S. business reporting for five or fewer foreign affiliates is estimated to be less than $1,000. Therefore, based on the forgoing, this proposed rule, if adopted, will not have a significant economic impact on a substantial number of small entities.

For the reasons set forth in the preamble, BEA proposes to amend 15 CFR Part 806 as follows:

These proposed rules amend 15 CFR Part 806.14 to set forth the reporting requirements for the BE-11, Annual Survey of U.S. Direct Investment Abroad. The Bureau of Economic Analysis (BEA), U.S. Department of Commerce, will conduct the survey under the International Investment and Trade in Services Survey Act (22 U.S.C. 3101-3108), hereinafter, “the Act.” Section 4(a) of the Act requires that with respect to United States direct investment abroad, the President shall, to the extent he deems necessary and feasible—

(1) Conduct a regular data collection program to secure current information on international capital flows and other information related to international investment and trade in services, including (but not limited to) such information as may be necessary for computing and analyzing the United States balance of payments, the employment and taxes of United States parents and affiliates, and the international investment and trade in services position of the United States; and

(2) Conduct such studies and surveys as may be necessary to prepare reports in a timely manner on specific aspects of international investment which may have significant implications for the economic welfare and national security of the United States.

In Section 3 of Executive Order 11961, the President delegated authority granted under the Act as concerns direct investment to the Secretary of Commerce, who has redelegated it to BEA.

The annual survey of U.S. direct investment abroad provides a variety of measures of the overall operations of U.S. parent companies and their foreign affiliates, including total assets, sales, net income, employment and employee compensation, research and development expenditures, and exports and imports of goods. The BE-11 is a cut-off sample survey that covers all foreign affiliates (and their U.S. parent companies) above a size-exemption level. The sample data are used to derive universe estimates in nonbenchmark years by extrapolating forward similar data reported in the BE-10, Benchmark Survey of U.S. Direct Investment Abroad, which is taken every five years. The data are needed to measure the size and economic significance of direct investment abroad, measure changes in such investment, and assess its impact on the U.S. and foreign economies. The data are disaggregated by country and industry of the foreign affiliate and by industry of the U.S. parent.

As proposed, the survey will consist of an instruction booklet, a claim for not filing the BE-11, and the following report forms:

1. Form BE-11A—Report for nonbank U.S. Reporters;

2. Form BE-11B(LF) (Long Form)—Report for majority-owned nonbank foreign affiliates with assets, sales, or net income greater than $100 million (positive or negative);

3. Form BE-11B(SF) (Short Form)—Report for majority-owned nonbank foreign affiliates with assets, sales, or net income greater than $30 million, but not greater than $100 million (positive or negative); and

4. Form BE-11C—Report for minority-owned nonbank foreign affiliates with assets, sales, or net income greater than $30 million (positive or negative).

BEA maintains a continuing dialogue with respondents and with data users, including its own internal users through the Bureau's Source Data Improvement and Evaluation Program, to ensure that, as far as possible, the required data serve their intended purposes and are available from existing records, that instructions are clear, and that unreasonable burdens are not imposed. In reaching decisions on what questions to include in the survey, BEA considered the Government's need for the data, the burden imposed on respondents, the quality of the likely response ( e.g., whether the data are readily available on respondent's books), and BEA's experience in previous annual surveys. Because BEA's proposed changes to the BE-11 are minimal and mirror those introduced in conjunction with the 1999 BE-10 benchmark survey, additional consultations outside the agency, beyond those held last year in conjunction with the benchmark survey design, were not conducted.

Changes proposed by BEA from the last annual survey include reduction of respondent burden, particularly for small companies, by (1) increasing the exemption level for reporting on the BE-11B(SF) short form and BE-11C form from $20 million to $30 million; (2) increasing the exemption level for reporting on the BE-11B(LF) long form from $50 million to $100 million; and (3) requiring U.S. Reporters with total assets, sales or gross operating revenues, and net income less than or equal to $100 million (positive or negative) to report only selected items on the BE-11A form. The exemption level is the level of a foreign affiliate's assets, sales, or net income below which a Form BE-11B(LF) or (SF) or BE-11C is not required. The exemption levels for the BE-11 survey were last raised following the 1994 benchmark survey and were effective with the annual survey covering the year 1995.

For fiscal year 2002 only, these proposed rules will require the largest nonbank foreign affiliates owned between 10 and 20 percent to be reported on Form BE-11C, along with affiliates owned between 20 and 50 percent. In all years, reporting on Form BE-11C is required if an affiliate is owned between 20 and 50 percent by all U.S. Reporters combined and if its assets, sales, or net income exceed $30 million (positive or negative). Primarily to reduce reporting burden of the survey, affiliates owned less than 20 percent do not have to be reported annually. However, U.S. direct investment abroad is defined by law to include all foreign business enterprises owned 10 (not 20) percent or more, directly or indirectly, by a U.S. person. BEA conducts periodic benchmark surveys of U.S. direct investment abroad (the BE-10), covering all foreign affiliates owned 10 percent or more. A benchmark survey for the year 1999 is now being conducted; the next survey will cover the year 2004. In order to maintain reliable estimates of data for the universe of all foreign affiliates in nonbenchmark years, reporting for the largest affiliates owned between 10 and 20 percent is needed for at least one year between benchmark surveys. Although the U.S. ownership percentages in these affiliates are low, some of the affiliates are very large and have a sizable impact on the estimates. Under these proposed rules, submission of Form BE-11C for nonbank foreign affiliates owned directly and/or indirectly, at least 10 percent by one U.S. Reporter, but less than 20 percent by all U.S. Reporters of the affiliate combined, and for which assets, sales, or net income exceed $100 million (positive or negative) would be required for fiscal year 2002 only. A similar requirement was imposed in the 1987, 1992, and 1997 annual surveys, which fell between earlier benchmark surveys.

BEA is proposing a few changes to the report forms themselves. BEA proposes to extend the use of the North American Classification System (NAICS) to the annual survey. NAICS is the new industry classification system of the United States, Canada, and Mexico; in the United States, it supplants the 1987 Standard Industrial Classification. Among other improvements, NAICS better reflects new and emerging industries, industries involved in the production of advanced technologies, and the growth and diversification of services industries. BEA used NAICS to collect industry information on the 1999 BE-10 benchmark survey of U.S. direct investment abroad.

In addition to the change in industry classification, BEA proposes to add equity ownership, interest received, and interest paid to the BE-11B(LF); expand the owner's equity section on the BE-11B(LF); reduce the detail collected on the composition of external finances of the foreign affiliate on the BE-11B(LF); and delete production royalty payments on the BE-11B(LF). Most of the proposed changes will conform the BE-11 more closely to the BE-10 benchmark survey for 1999. Finally, BEA is proposing improvements in the layout of the survey forms, and in the placement and clarity of instructions. The design follows that used for the BE-10 benchmark survey. The changes in the format and content of the survey forms, on balance, do not affect respondent burden.

A copy of the proposed forms may be obtained from: Office of the Chief, Direct Investment Abroad Branch, International Investment Division (BE-69(A)), Bureau of Economic Analysis, U.S. Department of Commerce, Washington, DC 20230; phone (202) 606-5566.

These proposed rules are not significant for purposes of E.O. 12866.

These proposed rules do not contain policies with Federalism implications sufficient to warrant preparation of a Federalism assessment under E.O. 13132.

These proposed rules contain a collection of information requirement subject to the Paperwork Reduction Act (PRA) and have been submitted to the Office of Management and Budget for review under the PRA.

Notwithstanding any other provisions of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection-of-information subject to the requirements of the Paperwork Reduction Act unless that collection displays a currently valid Office of Management and Budget control number.

The survey, as proposed, is expected to result in the filing of reports from about 1,500 respondents. The respondent burden for this collection of information is estimated to vary from 4 to 3,000 hours per response, with an average of 68.4 hours per response, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Thus the total respondent burden of the survey is estimated at 102,600 hours (1,500 respondents times 68.4 hours average burden).

Comments are requested concerning: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. Comments should be addressed to: Director, Bureau of Economic Analysis (BE-1), U.S. Department of Commerce, Washington, DC 20230; and to the Office of Management and Budget, O.I.R.A., Paperwork Reduction Project 0608-0053, Washington, DC 20503 (Attention PRA Desk Officer for BEA).

The Chief Counsel for Regulation, Department of Commerce, has certified to the Chief Counsel for Advocacy, Small Business Administration, under the provisions of the Regulatory Flexibility Act (5 U.S.C. 605(b)), that this proposed rulemaking, if adopted, will not have a significant economic impact on a substantial number of small entities. Few, if any, small U.S. businesses are subject to the reporting requirements of this survey. U.S. companies that have direct investments abroad tend to be quite large. The exemption level for the BE-11 survey is set in terms of the size of a U.S. company's foreign affiliates (foreign companies owned 10 percent or more by the U.S. company); if a foreign affiliate has assets, sales, or net income greater than the exemption level, it must be reported on Form BE-11B(LF), BE-11B(SF), or BE-11C. Usually, the U.S. parent company that is required to file the report is many times larger than its largest foreign affiliate. With the proposed increase in the exemption level for the BE-11 survey from $20 million to $30 million, even fewer small U.S. businesses will be required to file. To further reduce the reporting burden on small businesses, U.S. Reporters with total assets, sales or gross operating revenues, and net income less than or equal to $100 million (positive or negative) are required to report only selected items on the BE-11A form for U.S. Reporters in addition to forms they may be required to file for their foreign affiliates.

For the reasons set forth in the preamble, BEA proposes to amend 15 CFR Part 806 as follows:

The Bureau of Prisons is proposing to consolidate its regulations on alcohol testing (28 CFR part 550, subpart A) and urine surveillance (28 CFR part 550, subpart D). Current regulations on alcohol testing were published in the Federal Register on May 20, 1980 (45 FR 33940); current regulations on urine surveillance were published in the Federal Register on August 26, 1997 (62 FR 45292).

The existence of separate regulations governing alcohol testing and urinalysis testing reflects, in part, the different test methods traditionally available for detecting alcohol and other drug usage. While breathalyzer devices were commonly used in alcohol testing, urinalysis was the preferred method for detecting other drug usage. Advances in drug testing technology have increased the number of test methods suitable for use. The Bureau's regulations on urine surveillance need to be adjusted accordingly.

The Bureau is therefore revising its regulations on alcohol testing and urine surveillance as one consolidated regulation on drug testing programs. Consolidating these regulations is appropriate not only for the sake of eliminating unnecessary regulations but also for the sake of consistency with the treatment of alcohol abuse in the Bureau's regulations on drug abuse treatment programs (28 CFR part 550, subpart F).

Rather than specify the particular testing methods to be used, the revised regulations state that the Warden is to be responsible for selecting the method or methods of drug testing from the list of approved drug test methods compiled by the Bureau's Central Office. Having a compiled list of approved drug test methods provides for flexibility in the choice of methods. Documentation as to the validity of the tests and instructions for their use are to be maintained by the Bureau's Central Office as a matter of internal administrative management.

The current regulations defining refusal to participate are keyed solely to urinalysis procedures and are unnecessarily prescriptive, citing two hours as to the length of time given to produce the urine sample or specifying that staff shall offer the inmate eight ounces of water at the start of the two-hour period.

These provisions are revised to specify that staff supervising the drug test are to be the same gender as the inmate being tested if supervising the drug test involves an observation of intimate body parts or bodily functions (for example, the production of a urine sample). Inmates will be subject to disciplinary action in accordance with the provisions governing inmate discipline (28 CFR part 541, subpart B) if they refuse to participate or test positive for prohibited drug use. Refusal to participate can be demonstrated verbally or by actions. For example, if an inmate states that he or she will not take the test, staff may charge the inmate with Prohibited Act Code 110, refusing to provide a urine sample or to take part in other drug-abuse testing. Examples of an inmate refusing to participate by action include an inmate who tampers with a drug test or who fails to provide a urine sample despite being given a reasonable opportunity to do so. The Bureau's internal guidance on defining “reasonable opportunity” retains instructions formerly cited in the regulations as to the availability of water (at least eight ounces) and the length of time (at least two hours) given to produce a urine sample. Staff are to document the circumstances pertaining to the inmate's refusal to participate.

Interested persons may participate in this proposed rulemaking by submitting data, views, or arguments in writing to the Rules Unit, Office of General Counsel, Bureau of Prisons, 320 First Street, NW., HOLC Room 754, Washington, DC 20534. Comments received during the comment period will be considered before final action is taken. Comments received after the expiration of the comment period will be considered to the extent practicable. All comments received remain on file for public inspection at the above address. The proposed rule may be changed in light of the comments received. No oral hearings are contemplated.

This rule falls within a category of actions that the Office of Management and Budget (OMB) has determined not to constitute “significant regulatory actions” under section 3(f) of Executive Order 12866 and, accordingly, it was not reviewed by OMB.

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

The Director of the Bureau of Prisons, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact upon a substantial number of small entities for the following reasons: This rule pertains to the correctional management of offenders committed to the custody of the Attorney General or the Director of the Bureau of Prisons, and its economic impact is limited to the Bureau's appropriated funds.

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

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

We try to write clearly. If you can suggest how to improve the clarity of these regulations, call or write Sarah Qureshi at the address listed above.

Accordingly, pursuant to the rulemaking authority vested in the Attorney General in 5 U.S.C. 552(a) and delegated to the Director, Bureau of Prisons in 28 CFR 0.96(o), we propose to amend part 550 in subchapter C of 28 CFR, chapter V as set forth below.

Throughout this document, wherever “we,” “us,” or “our” are used, we mean the Environmental Protection Agency (EPA).

Areas meeting the requirements of section 107(d)(4)(B) of the CAA were designated nonattainment for PM 10 by operation of law and classified “moderate” upon enactment of the 1990 Clean Air Act Amendments. See generally, 42 U.S.C. 7407(d)(4)(B). These areas included all former Group I PM 10 planning areas identified in 52 FR 29383 (August 7, 1987) as further clarified in 55 FR 45799 (October 31, 1990), and any other areas violating the national ambient air quality standards (NAAQS) for PM 10 prior to January 1, 1989. 1 A Federal Register notice announcing the areas designated nonattainment for PM 10 upon enactment of the 1990 Amendments, known as “initial” PM 10 nonattainment areas, was published on March 15, 1991 (56 FR 11101) and a subsequent Federal Register document correcting the description of some of these areas was published on August 8, 1991 (56 FR 37654). See 40 CFR 81.345 (codified air quality designations and classifications for Utah).

All initial moderate PM 10 nonattainment areas had the same applicable attainment date of December 31, 1994. Section 188(d) provides the Administrator the authority to grant up to two one-year extensions to the attainment date provided certain requirements are met as described below. States containing initial moderate PM 10 nonattainment areas were required to develop and submit to EPA by November 15, 1991, a SIP revision providing for, among other things, implementation of reasonably available control measures (RACM), including reasonably available control technology (RACT), and a demonstration of whether attainment of the PM 10 NAAQS by the December 31, 1994 attainment date was practicable. See section 189(a).

All PM 10 nonattainment areas are initially classified “moderate” by operation of law when they are designated nonattainment. See section 188(a). Pursuant to sections 179(c) and 188(b)(2) of the Act, we have the responsibility of determining within six months of the applicable attainment date whether, based on air quality data, PM 10 nonattainment areas attained the NAAQS by that date. Determinations under section 179(c)(1) of the Act are to be based upon an area's “air quality as of the attainment date.” Section 188(b)(2) is consistent with this requirement.

Generally, we will determine whether an area's air quality is meeting the PM 10 NAAQS for purposes of section 179(c)(1) and 188(b)(2) based upon data gathered at established state and local air monitoring stations (SLAMS) and national air monitoring sites (NAMS) in the nonattainment area and entered into the Aerometric Information Retrieval System (AIRS). Data entered into the AIRS has been determined to meet federal monitoring requirements (see 40 CFR 50.6, 40 CFR part 50, appendix J, 40 CFR part 53, 40 CFR part 58, appendix A & B) and may be used to determine the attainment status of areas. We will also consider air quality data from other air monitoring stations in the nonattainment area provided that the stations meet the federal monitoring requirements for SLAMS. All data are reviewed to determine the area's air quality status in accordance with our guidance at 40 CFR part 50, appendix K.

Attainment of the annual PM 10 standard is achieved when the annual arithmetic mean PM 10 concentration over a three year period (for example, 1993, 1994, 1995 for areas with a December 31, 1995 attainment date) is equal to or less than 50 micrograms per cubic meter (μg/m 3 ). Attainment of the 24-hour standard is determined by calculating the expected number of days in a year with PM 10 concentrations greater than 150 μg/m 3 . The 24-hour standard is attained when the expected number of days with levels above 150 μg/m 3 (averaged over a three year period) is less than or equal to one. Three consecutive years of air quality data is generally necessary to show attainment of the 24-hour and annual standard for PM 10 . See 40 CFR part 50 and appendix K.

The Act provides the Administrator the discretion to grant up to two one-year extensions of the attainment date for a moderate PM 10 nonattainment area provided certain criteria are met. The CAA sets forth two criteria that a moderate nonattainment area must satisfy in order to obtain an extension: (1) The State has complied with all the requirements and commitments pertaining to the area in the applicable implementation plan; and (2) The area has no more than one exceedance of the 24-hour PM 10 standard in the year preceding the extension year, and the annual mean concentration of PM 10 in the area for the year preceding the extension year is less than or equal to the standard. See section 188(d).

The authority delegated to the Administrator to extend attainment dates for moderate PM 10 nonattainment areas is discretionary. Section 188(d) of the Act provides that the Administrator “may” extend the attainment date for areas that meet the minimum requirements specified above. The provision doesn't dictate or compel that we grant extensions to such areas.

We have stated in guidance that in exercising this discretionary authority for PM 10 nonattainment areas, we will examine the air quality planning progress made in the moderate area. We will be disinclined to grant an attainment date extension unless a State has, in substantial part, addressed its moderate PM 10 nonattainment area planning obligations. In order to determine whether the State has substantially met these planning requirements we will review the State's application for the attainment date extension to determine whether the State has: (1) Adopted and substantially implemented control measures that represent RACM/RACT in the moderate nonattainment area; and (2) Demonstrated that the area has made emission reductions amounting to RFP toward attainment of the PM 10 NAAQS as defined in section 171(1) of the Act. RFP for PM 10 nonattainment areas is defined in section 171(1) of the Act as annual incremental emission reductions to ensure attainment of the applicable NAAQS (PM 10 ) by the attainment date.

If the State doesn't have the requisite number of years of clean air quality data to show attainment and doesn't apply or qualify for an attainment date extension, the area will be reclassified to serious by operation of law under section 188(b)(2) of the Act. If an extension to the attainment date is granted, at the end of the extension year we will again determine whether the area has attained the PM 10 NAAQS. If the requisite three consecutive years of clean air quality data needed to determine attainment are not met for the area, the State may apply for a second one-year extension of the attainment date. In order to qualify for the second one-year extension of the attainment date, the State must satisfy the same requirements listed above for the first extension. We will also consider the State's PM 10 planning progress for the area in the year for which the first extension was granted. If a second extension is granted and the area doesn't have the requisite three consecutive years of clean air quality data needed to demonstrate attainment at the end of the second extension, no further extensions of the attainment date can be granted. Once a final determination to this effect is made by us through the Federal Register , the area will be reclassified as serious by operation of law. See section 188(d).

In response to requests from the Governor of Utah, we are proposing to grant a one-year attainment date extension for the Salt Lake County, Utah PM 10 nonattainment area and two one-year attainment date extensions for the Utah County, Utah PM 10 nonattainment area in order to address CAA requirements. The effect of these actions would be to extend the attainment date for the Salt Lake County, Utah PM 10 nonattainment area from December 31, 1994 to December 31, 1995 and the attainment date for the Utah County, Utah PM 10 nonattainment area from December 31, 1994 to December 31, 1995 and from December 31, 1995 to December 31, 1996. The proposed action to extend the attainment date for Salt Lake County is based on monitored air quality data for the national ambient air quality standard (NAAQS) for PM 10 from the years 1992-94 and the action for Utah County is based on data from the years 1992-94 and 1993-1995. In addition, based on quality-assured data meeting the requirements of 40 CFR part 50, appendix K, we are proposing to find that, as of December 31, 1995, Salt Lake County attained the PM 10 NAAQS, and that, as of December 31, 1996, Utah County attained the PM 10 NAAQS. Both areas are continuing to attain the PM 10 NAAQS. If we finalize this proposal, consistent with CAA section 188, the areas will remain moderate PM 10 nonattainment areas and avoid the additional planning requirements that apply to serious PM 10 nonattainment areas.

This action should not be confused with a redesignation to attainment under CAA section 107(d) because Utah hasn't submitted a maintenance plan as required under section 175(A) of the CAA or met the other CAA requirements for redesignation. The designation status in 40 CFR part 81 will remain moderate nonattainment for both areas until such time as Utah meets the CAA requirements for redesignations to attainment.

We are soliciting public comments on the issues discussed in this document or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA Regional office listed in the ADDRESSES section of this document.

As initial moderate PM 10 nonattainment areas, both Salt Lake and Utah Counties were required by CAA section 188 to attain the PM 10 NAAQS by December 31, 1994. As noted above, section 188 of the CAA requires EPA to determine whether such moderate areas have attained the NAAQS or not within six months of the attainment date. In the event an area doesn't attain the NAAQS by the attainment date, section 188 also allows States to request and EPA to approve attainment date extensions if certain criteria are met. On May 11, 1995, the State of Utah requested a one-year extension of the attainment date for both Salt Lake and Utah Counties. On October 18, 1995, we indicated that we were granting the requested one-year extensions. We also indicated in a letter dated January 25, 1996 that we would publish a rulemaking action on the extension requests “in the very near future,” but we didn't do so. Nor did we publish determinations in the Federal Register that the areas had not attained the NAAQS as of December 31, 1994. On March 27, 1996, the State of Utah requested a second one-year extension of the attainment date for Utah County. We didn't publish a determination in the Federal Register that Utah County had not attained the NAAQS as of December 31, 1995.

EPA is now proposing to extend the attainment date from December 31, 1994 to December 31, 1995 for the Salt Lake County PM 10 nonattainment area and the Utah County PM 10 nonattainment area. EPA is also proposing to extend the attainment date for the Utah County PM 10 nonattainment area for an additional year—until December 31, 1996. As we explain more fully below, we believe these extensions are warranted under CAA section 188(d). In addition, we are finding that the Salt Lake County PM 10 nonattainment area attained the PM 10 NAAQS as of December 31, 1995 and the Utah County PM 10 nonattainment area attained the PM 10 NAAQS as of December 31, 1996.

a. Air Quality Data. We are using data from calendar year 1994 to determine whether the area met the air quality criteria for granting a one-year extension to the attainment date under section 188(d) of the CAA.

The Salt Lake County PM 10 nonattainment area includes the entire county. In 1994, Utah's Department of Air Quality (UDAQ or Utah) operated six PM 10 monitors, which were SLAMS and NAMS, in Salt Lake County. We deemed the data from these sites valid and the data were submitted by Utah to be included in AIRS.

In 1994, there were eight exceedances of the 24-hour PM 10 NAAQS at one monitor (North Salt Lake Site) and one exceedance of the 24-hour NAAQS at another monitor (AMC Site). Based on nearby construction activity, Utah requested that the eight exceedances recorded at the North Salt Lake Site in 1994 be excluded under our “Guideline on the Identification and Use of Air Quality Data Affected By Exceptional Events,” (EPA-450/4-86-007). We determined that the North Salt Lake monitor was influenced by highly localized, fugitive dust events caused by the construction activity occurring in the immediate area. The Guideline allows consideration of the influence of certain events, such as construction, near air monitoring stations in determining if data should be used for regulatory purposes. Because of those impacts from localized construction near the North Salt Lake site, all data from June 8 to November 23, 1994 were excluded from the data set used in calculations for attainment/nonattainment purposes.

With the exclusion of the above-mentioned block of data, there was only one exceedance recorded at one other monitor (AMC site). Therefore, with only one exceedance of the PM 10 NAAQS recorded in 1994, the area met one of the requirements to qualify for an attainment date extension under section 188(d). 2

b. Compliance with the Applicable SIP. The State of Utah submitted the PM 10 SIP for Salt Lake County on November 14, 1991. On December 18, 1992 (57 FR 60149), EPA proposed to approve the plan as satisfying those moderate PM 10 nonattainment area requirements that were due November 15, 1991. On July 8, 1994 (59 FR 35036), EPA took final action approving the Salt Lake County PM 10 SIP. The SIP control strategies consist of controls for stationary sources and area sources (including controls for woodburning, mobile sources, and road salting and sanding) of primary PM 10 emissions as well as sulfur oxide (SO X ) and nitrogen oxide (NO X ) emissions, which are secondary sources of particulate emissions.

Based on information the State submitted in 1995, we believe that Utah was in compliance with the requirements and commitments in the applicable implementation plan that pertained to the Salt Lake County PM 10 nonattainment area when the State submitted its extension request. The milestone report indicates that Utah had implemented most of its adopted control measures, and therefore we believe Utah substantially implemented its RACM/RACT requirements.

c. Emission Reduction Progress. With its May 11, 1995, request for a one-year attainment date extension for Salt Lake County, the State of Utah also submitted a milestone report as required by section 189(c)(2) of the Act to demonstrate annual incremental emission reductions and reasonable further progress (RFP). On September 29, 1995, Utah submitted a revised version of the milestone report. The revised 1995 milestone report estimated current emissions from all source categories covered by the SIP and compared those estimates to 1988 actual emissions. These estimates of current emissions indicated that total emissions of PM 10 , SO 2 , and NO X had been reduced by approximately 60,752 tons per year, from a 1988 value of 150,292 tons per year to a current value of 89,540 tons per year.

The effect of these emission reductions appears to be reflected in ambient measurements at the monitoring sites. Data from these sites show no violations of either the annual or the 24-hour PM 10 standard since the 1992-1994 period. Furthermore, in 1994 there was only one exceedance of the 24-hour standard and the highest monitored annual standard at any monitor was 47μ/m 3 . This is evidence that the State's implementation of PM 10 SIP control measures resulted in emission reductions amounting to reasonable further progress in the Salt Lake County PM 10 nonattainment area.

Whether an area has attained the PM 10 NAAQS is based exclusively upon measured air quality levels over the most recent and complete three calendar year period. See 40 CFR part 50 and 40 CFR part 50, appendix K. If we finalize this action, the extended attainment date for Salt Lake County will be December 31, 1995, and the three year period will cover calendar years 1993, 1994, and 1995.

The PM 10 concentrations reported at six different monitoring sites showed one measured exceedance of the 24-hour PM 10 NAAQS between 1993 and 1995. Because data collection was less than 100% at these monitoring sites, the expected exceedance rate for 1994 was 1.03. For 1993 and 1995, it was 0.0. Thus, the three-year average was less than 1.0, which indicates Salt Lake County attained the 24-hour PM 10 NAAQS as of December 31, 1995.

Review of the annual standard for calendar years 1993, 1994 and 1995 reveals that Utah also attained the annual PM 10 NAAQS by December 31, 1995. There was no violation of the annual standard for the three year period from 1993 through 1995.

a. Air Quality Data. The Utah County PM 10 nonattainment area includes the entire county. In 1994 and 1995, UDAQ operated four PM 10 monitoring sites, which were either SLAMS or NAMS, in Utah County. We deemed the data from these sites valid and the data was submitted by Utah to be included in AIRS.

We are using data from calendar year 1994 to determine whether the area met the air quality criteria for granting a one-year extension of the attainment date, from December 31, 1994 to December 31, 1995, under section 188(d) of the CAA. We are using calendar year 1995 data to determine whether the Utah County area met the air quality criteria for granting an extension of the attainment date from December 31, 1995 to December 31, 1996.

In 1994, there were no exceedances of the 24-hour or annual PM 10 NAAQS in Utah County. Since no exceedances of the PM 10 NAAQS were recorded in 1994, the area met one of the requirements to qualify for a one-year attainment date extension under section 188(d). 3 In 1995, there were no exceedances of the 24-hour or annual PM 10 NAAQS in Utah County. Since no exceedances of the PM 10 NAAQS were recorded in 1995, the area met one of the requirements to qualify for a second one-year attainment date extension under section 188(d).

b. Compliance with the Applicable SIP. The State of Utah submitted the PM 10 SIP for Utah County on November 14, 1991. On December 18, 1992 (57 FR 60149), EPA proposed to approve the plan as satisfying those moderate PM 10 nonattainment area requirements due November 15, 1991. On July 8, 1994 (59 FR 35036), EPA took final action approving the Utah County PM 10 SIP. The SIP control strategies consist of controls for stationary sources and area sources (including controls for woodburning, mobile sources, and road salting and sanding) of primary PM 10 emissions as well as sulfur oxide (SO X ) and nitrogen oxide (NO X ) emissions, which are secondary sources of particulate emissions.

Based on information the State submitted in 1995, we believe that Utah was in compliance with the requirements and commitments in the applicable implementation plan that pertained to the Utah County PM 10 nonattainment area when Utah submitted its first extension request. The milestone report indicates that Utah County had implemented most of its adopted control measures, and therefore we believe Utah substantially implemented its RACM/RACT requirements. Based on information the State submitted in 1996, we believe that Utah was in compliance with the requirements and commitments in the applicable implementation plan that pertained to the Utah County PM 10 nonattainment area when the State submitted its second extension request. The milestone report indicates that the State continued to implement its adopted control measures, and therefore we believe Utah substantially implemented its RACM/RACT requirements.

c. Emission Reduction Progress. With its May 11, 1995, request for a one-year attainment date extension for Utah County, the State of Utah also submitted a milestone report as required by section 189(c)(2) of the Act to demonstrate annual incremental emission reductions and RFP. On September 29, 1995, Utah submitted a revised version of the milestone report. The revised 1995 milestone report estimated current emissions from all source categories covered by the SIP and compared those estimates to 1988 actual emissions. These estimates of current emissions indicated that total emissions of PM 10 , SO 2 , and NO X had been reduced by approximately 3,129 tons per year, from a 1988 value of 25,920 tons per year to a then current value of 22,791 tons per year.

With its March 27, 1996 request for an additional one-year attainment date extension for Utah County, the State of Utah submitted another milestone report. Utah submitted a revised version of this milestone report on May 17, 1996. The March 27, 1996 milestone report estimated current emissions from all source categories covered by the SIP and compared those estimates to 1988 actual emissions. These estimates of current emissions indicated that total emissions of PM 10 , SO 2 , and NO X had been reduced from the 1988 total by approximately 8,391 tons per year.

The effect of these emission reductions appears to be reflected in ambient measurements at the monitoring sites. Data from these sites show no exceedances of either the annual or the 24-hour PM 10 standard in 1994 or 1995. The vast majority of monitored values were well below the 24-hour standard. The highest annual value recorded at any monitor during 1994 and 1995 was 39μ/m3. This is evidence that the State's implementation of PM 10 SIP control measures resulted in emission reductions amounting to RFP in the Utah County PM 10 nonattainment area.

Whether an area has attained the PM 10 NAAQS is based exclusively upon measured air quality levels over the most recent and complete three calendar year period. See 40 CFR part 50 and 40 CFR part 50, appendix K. If we finalize this action, the extended attainment date for Utah County will be December 31, 1996, and the three year period will cover calendar years 1994, 1995, and 1996.

The PM 10 concentrations reported at four different monitoring sites showed no measured exceedances of the 24-hour PM 10 NAAQS between 1994 and 1996, which indicates Utah County attained the 24-hour PM 10 NAAQS as of December 31, 1996.

Review of the annual standard for calendar years 1994, 1995 and 1996 reveals that Utah also attained the annual PM 10 NAAQS by December 31, 1996. No monitoring sites showed a violation of the annual standard in the three year period from 1994 through 1996.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This proposed action merely approves a state request as meeting federal requirements and imposes no requirements. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this proposed rule would not impose any enforceable duty, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this proposed rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This proposed rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state request for an attainment date extension, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Applications to NIH for grants for biomedical and behavioral research and NIH research and development contract project concepts and contract proposals are reviewed under a two-level scientific peer review system, often referred to as the dual review system. This dual review system separates the scientific assessment of proposed projects from policy decisions about scientific areas to be supported and the level of resources to be allocated, which permits a more objective and complete evaluation than would result from a single level of review. The review system is designed to provide NIH officials with the best available advice about scientific and technical merit as well as program priorities and policy considerations.

The review system consists of two sequential levels of review for each application that will be considered for funding. For most grant and cooperative agreement (hereafter referred to as grant) applications, the initial or first level review involves panels of experts established according to scientific disciplines or medical specialty areas, whose primary function is to evaluate the scientific merit of grant applications. These panels are referred to as Scientific Review Groups (SRGs), a generic term that includes both regular study sections and special emphasis panels (SEPs). In some cases, SRGs in scientifically related areas are organizationally combined into Initial Review Groups (IRGs).

The second level of review of grant applications is performed by National Advisory Boards or Councils composed of both scientific and lay representatives. The recommendations made by these Boards or Councils are based not only on considerations of scientific merit as judged by the SRG, but also on the relevance of a proposed project to the programs and priorities of NIH. In most cases Councils concur with the SRG recommendation. If a Board or Council does not concur with the SRG's assessment of scientific merit, the Board or Council can defer the application for re-review. Subject to limited exceptions as described in Council operating procedures, unless an application is recommended by both the SRG and the Board or Council, no award can be made.

The first level of review of grant applications, and both levels of review of contract project concepts and contract proposals, are governed by the regulations codified at 42 CFR Part 52h, Scientific Peer Review of Research Grant Applications and Research and Development Contract Projects.

The regulations at 42 CFR Part 52h were last amended in November 1982. We are proposing to revise the regulations to incorporate changes that are required to update Part 52h.

The regulations would be revised to: (1) change the section pertaining to conflict of interest to reflect that non-Federal members of SRGs are not appointed as Special Government Employees and therefore are not subject to the conflict of interest statutes and regulations applicable to Federal employees, and to provide a more practical view of the very complex relationships that occur in the scientific community; (2) clarify the applicability of the peer review rules to the review of grant applications and contract proposals; (3) clarify the review criteria applicable to grant applications; and (4) update references, add or amend definitions as necessary, and make appropriate editorial changes.

The conflict of interest provisions in § 52h.5 define real and apparent conflicts of interest, prohibit or restrict participation in peer review by those who have a conflict of interest, and permit waivers of those restrictions under prescribed conditions that are intended to protect the integrity of the review process. It is expected that the flexibility afforded by the proposed regulations will enhance the recruitment of qualified reviewers without compromising the integrity of the review process.

The proposed changes to § 52h.8 “Grants review criteria” were developed after extensive input from and discussion with the scientific community during 1996-1997 in response to a report entitled “Rating of Grant Applications” that was shared with the scientific community. The report and rating criteria were discussed at four open meetings of the Peer Review Oversight Group, whose members include representatives from the peer review community. That group made recommendations to NIH on review criteria (minutes of these meetings are posted on the NIH homepage, www.nih.gov). There was extensive discussion of how to include the concepts of “innovativeness” and “impact” of the research. After due consideration, the Director, NIH, decided on the revised review criteria for rating unsolicited research grant applications that were published in the NIH Guide for Grants and Contracts, June 27, 1997. These review criteria have been well received by the research community and by those involved in the review process, who view them as beneficial to the review process.

The proposed § 52h.8 clarifies and rearranges the previous review criteria consistent with the criteria published in the NIH Guide. The term “originality” would be moved from (a) to the new (c) where it becomes “the innovativeness and originality of the proposed research.” Criterion (b) would be clarified from “methodology” to “approach and methodology.” Criterion (e) would be clarified as “the scientific environment and reasonable availability of resources” instead of only “reasonable availability of resources.” The scientific peer review group would assess the overall impact that the project could have on the field in light of the assessment of individual review criteria. In addition, review criterion (f), concerning plans to include both genders, minorities, children and special populations, would be added to reflect current statutes and NIH policies.

Additionally, the authority citation would be amended to reflect the current authorities and §§ 52h.1, 52h.2, 52h.3, 52h.5, and 52h.10 would be amended to reflect the applicability of the regulations to NIH alone. In accordance with the changes in applicability, references to the Alcohol, Drug Abuse, and Mental Health Administration (ADAMHA) and the Health Resources and Services Administration (HRSA) would be deleted. Section 52h.2 would be amended to include definitions for several additional terms, and minor editorial changes are proposed for several definitions and § 52h.6.

The following statements are provided for public information.

Executive Order 12866 requires that all regulatory actions reflect consideration of the costs and benefits they generate and that they meet certain standards, such as avoiding the imposition of unnecessary burdens on the affected public. If a regulatory action is deemed to fall within the scope of the definition of the term “significant regulatory action” contained in Section 3(f) of the Order, pre-publication review by the Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA) is necessary. This action was reviewed under Executive Order 12866 by OIRA and was deemed not significant.

The Department prepares a regulatory flexibility analysis, in accordance with the Regulatory Flexibility Act of 1980 (5 U.S.C. chapter 6), if a rule is expected to have a significant impact on a substantial number of small entities. The Principal Deputy Director, NIH, certifies that this proposed rule will not have a significant impact on a substantial number of small entities and that a regulatory flexibility analysis, as defined under the Regulatory Flexibility Act of 1980, is not necessary.

Executive Order 13132, Federalism, requires that federal agencies consult with State and local government officials in the development of regulatory policies with federalism implications. The Principal Deputy Director, NIH, reviewed the rule as required under the Order and determined that it does not have any federalism implications. The Principal Deputy Director, NIH, certifies that the changes in the scientific peer review regulations will not have an effect on the States, or on the distribution of power and responsibilities among the various levels of government.

This proposed rule does not contain any information collection requirements that are subject to review by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).

For the reasons stated in the preamble, part 52h of title 42 of the Code of Federal Regulations is proposed to be revised to read as set forth below.

The endangered Riverside fairy shrimp ( Streptocephalus wootoni ) is a small aquatic crustacean (Order: Anostraca) that occurs in vernal pools, pool-like ephemeral ponds, and human-modified depressions from coastal southern California south to northwestern Baja California, Mexico. This species is typically found in pools, ponds, and depressions that are deeper and cooler than the basins that support the related species, the endangered San Diego fairy shrimp ( Streptocephalus sandiegonensis ) (Hathaway and Simovich 1996). Water chemistry, depth, temperature, and ponding are considered important factors in determining fairy shrimp distribution (Belk 1977; Branchiopod Research Group 1996; Gonzales et al . 1996); hence, no individuals have been found in riverine or marine waters.

Mature males are between 13 to 25 millimeters (mm) (0.5 to 1.0 inches (in.)) long. The cercopods (structures that enhance the rudder-like function of the abdomen) are separate with plumose setae (feathery bristles) along the borders. Mature females are between about 13 to 22 mm (0.5 to 0.87 in.) in total length. The brood pouch extends to the seventh, eighth, or ninth abdominal segment. The cercopods of females are the same as the males. Both sexes of Riverside fairy shrimp have the red color of the cercopods covering all of the ninth abdominal segment and 30 to 40 percent of the eighth abdominal segment. Nearly all species of fairy shrimp feed on algae, bacteria, protozoa, rotifers, and bits of organic matter (Pennak 1989; Eng et al . 1990).

Basins that support Riverside fairy shrimp are typically dry a portion of the year, but usually are filled by late fall, winter, or spring rains, and may persist into April or May. All anostracans, like the Riverside fairy shrimp, deposit eggs or cysts (organisms in a resting stage) in the pool's soil to wait out dry periods. The hatching of the cysts is usually observed from January to March; however, in years with early or late rainfall, the hatching period may be extended. The species hatches within 7 to 21 days after the pool refills, depending on water temperature, and matures between 48 to 56 days, depending on a variety of habitat conditions (Hathaway and Simovich 1996). The “resting” or “summer” cysts are capable of withstanding temperature extremes and prolonged drying. When the pools refill in the same or subsequent rainy seasons, some but not all of the eggs may hatch. Fairy shrimp egg banks in the soil may be composed of the eggs from several years of breeding (Donald 1983; Simovich and Hathaway 1997). Simovich and Hathaway (1997) found that only a fraction of the total cyst bank of anostracans in areas with variable weather conditions or filling periods, such as southern California, may hatch in any given year. Thus, reproductive success is spread over several seasons.

Vernal pools have a discontinuous occurrence in several regions of California (Keeler-Wolf et al . 1995), from as far north as the Modoc Plateau in Modoc County, south to the international border in San Diego County. Vernal pools form in regions with Mediterranean climates, where shallow depressions fill with water during fall and winter rains and then evaporate in the spring (Collie and Lathrop 1976; Holland 1976, 1988; Holland and Jain 1977, 1988; Thorne 1984; Zedler 1987; Simovich and Hathaway 1997). In years of high precipitation, overbank flooding from intermittent streams may augment the amount of water in some vernal pools (Hanes et al. 1990). Critical to the formation of vernal pools is the presence of nearly impermeable surface or subsurface soil layers and flat or gently sloping topography (less than 10 percent slope). Downward percolation of water in vernal pool basins is prevented by the presence of this impervious layer (Holland 1976, 1988). In southern California, these impervious layers are typically alluvial materials with clay or clay loam subsoils, and they often form a distinctive micro-relief known as Gilgai or mima mound topography (Hallsworth et al. 1955; Cox 1984a). Basaltic or granitic substrates ( e.g. , Hidden Lake and Santa Rosa Plateau in Riverside County) or indurated hardpan layers ( e.g. , coastal San Diego County) may contribute to poor drainage as well. Vernal pool studies conducted in the Sacramento Valley indicate that the contribution of subsurface or overland water flows is significant only in years of high precipitation when pools are already saturated (Hanes and Stromberg 1996).

On the coastal terraces in San Diego County, pools are associated with the Huerhuero, Stockpen, Redding, and Olivenhain soil series. Huerhuero and Stockpen soils were derived from marine sediments and terraces, while the Redding and Olivenhain soils series were formed from alluvium. The Redding and Olivenhain soils are believed to have supported the majority of the pools historically found in San Diego County. In Riverside County, the Santa Rosa Plateau has Murrieta stony clay loams and soils of the Las Posas series (Lathrop and Thorne 1976), and at Skunk Hollow the soils in the immediate area of the vernal pool are Las Posas clay loam, Wyman clay loam, and Willows soil (Zedler et al . 1990).

Vernal pool systems are often characterized by different landscape features including mima mound (miniature mounds) micro-topography, varied pool basin size and depth, and vernal swales (low tract of marshy land). Vernal pool complexes that support one to more vernal pools are often interconnected by a shared watershed. This habitat heterogeneity (consisting of dissimilar elements or parts) generally ensures that some between-pool water flow continues.

Urban and water development, flood control, highway and utility projects, as well as conversion of wildlands to agricultural use, have eliminated or degraded vernal pools and/or their watersheds in southern California (Jones and Stokes Associates 1987). Changes in hydrologic patterns, certain military activities, unauthorized fills, overgrazing, and off-road vehicle use also may imperil this aquatic habitat and the Riverside fairy shrimp. The flora and fauna in vernal pools or swales can change if the hydrologic regime is altered (Bauder 1986). Anthropogenic (human origin) activities that reduce the extent of the watershed or that alter runoff patterns ( i.e. , amounts and seasonal distribution of water) may eliminate the Riverside fairy shrimp, reduce population sizes or reproductive success, or shift the location of sites inhabited by this species.

Historically, vernal pool soils covered approximately 500 square kilometers (km 2 ) (200 square miles (mi 2 )) of San Diego County (Bauder and McMillan 1998). The greatest recent losses of vernal pool habitat in San Diego County have occurred in Mira Mesa, Rancho Penasquitos, and Kearny Mesa, which accounted for 73 percent of all the pools destroyed in the region during the 7-year period between 1979 and 1986 (Keeler-Wolf et al. 1995). Other substantial losses have occurred in the Otay Mesa area, where over 40 percent of the vernal pools were destroyed between 1979 and 1990. Similar to San Diego County, vernal pool habitat was once extensive on the coastal plain of Los Angeles and Orange counties (Mattoni and Longcore 1998). Unfortunately, there has been a near-total loss of vernal pool habitat in these areas (Ferren and Pritchett 1988; Keeler-Wolf et al. 1995). Significant losses of vernal pools supporting this species have also occurred in Riverside County.

The San Gorgonio chapter of the Sierra Club submitted a petition dated September 19, 1988, to list the Riverside fairy shrimp as endangered. The petitioner asserted that emergency listing for this species was appropriate. However, the Service determined that emergency listing was not warranted since the species was more widespread than first thought and occurred in at least one protected site. Nevertheless, we did publish a proposed rule to list the Riverside fairy shrimp as an endangered species in the Federal Register on November 12, 1991 (56 FR 57503). Because the species was not identified until 1985, and its existence remained known only to a few scientists until 1988, the proposed rule constituted the first Federal action on the Riverside fairy shrimp. We published the final rule to list the Riverside fairy shrimp as endangered in the Federal Register on August 3, 1993 (58 FR 41384). In 1998, the Vernal Pools of Southern California Recovery Plan ((U.S. Fish and Wildlife Service (USFWS) 1998) was finalized. This recovery plan included the efforts required to meet the recovery needs of the Riverside fairy shrimp.

On June 30, 1999, the Southwest Center for Biological Diversity filed a lawsuit in Federal District Court for the Northern District of California for our failure to designate critical habitat for the Riverside fairy shrimp. On February 15, 2000, the Service entered into a settlement agreement with the plaintiff, by which the Service agreed to readdress the prudency of designating critical habitat for the Riverside fairy shrimp by September 1, 2000, and propose critical habitat if prudent ( Southwest Center for Biodiversity v. United States Department of the Interior et. al. , C99-3202 SC). This date was subsequently extended to September 15, 2000.

At the time of listing, we concluded that designation of critical habitat for the Riverside fairy shrimp was not prudent because such designation would not benefit the species. We were concerned that critical habitat designation would likely increase the degree of threat from vandalism, collecting, or other human activities. However, we have determined that the threats to this species and its habitat from specific instances of habitat destruction do not outweigh the broader educational and any potential regulatory and other possible benefits that designation of critical habitat would provide for this species. A designation of critical habitat for the Riverside fairy shrimp will provide educational benefits by formally identifying those areas essential to the conservation of the species. These areas were already identified in the Vernal Pools of Southern California Recovery Plan as the focus of our recovery efforts for the Riverside fairy shrimp (Service 1998).

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 considerations or protection; and (ii) specific areas outside the geographic area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. “Conservation” means the use of all methods and procedures 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) of the Act requires that we base critical habitat proposals upon the best scientific and commercial data available, after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat. We may exclude areas from critical habitat designation when the benefits of exclusion outweigh the benefits of including the areas within critical habitat, provided the exclusion will not result in extinction of the species.

Designation of critical habitat can help focus conservation activities for a listed species by identifying areas that contain the physical and biological features that are essential for the conservation of that species. Designation of critical habitat alerts the public as well as land-managing agencies to the importance of these areas.

Critical habitat also identifies areas that may require special management considerations or protection, and may provide protection to areas where significant threats to the species have been identified. Critical habitat receives protection from destruction or adverse modification through required consultation under section 7 of the Act with regard to actions carried out, funded, or authorized by a Federal agency. Section 7 also requires conferences on Federal actions that are likely to result in the adverse modification or destruction of proposed critical habitat. Aside from the protection that may be provided under section 7, the Act does not provide other forms of protection to lands designated as critical habitat.

Section 7(a)(2) of the Act requires Federal agencies to consult with us to ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a threatened or endangered species, or result in the destruction or adverse modification of critical habitat. In 50 CFR 402.02, “jeopardize the continued existence” (of a species) is defined as engaging in an activity likely to result in an appreciable reduction in the likelihood of survival and recovery of a listed species. “Destruction or adverse modification” (of critical habitat) is defined as a direct or indirect alteration that appreciably diminishes the value of critical habitat for the survival and recovery of the listed species for which critical habitat was designated. Thus, the definitions of “jeopardy” to the species and “adverse modification” of critical habitat are nearly identical (50 CFR 402.02).

Designating critical habitat does not, in itself, lead to recovery of a listed species. Designation does not create a management plan, establish numerical population goals, and prescribe specific management actions (inside or outside of critical habitat). Specific management recommendations for areas designated as critical habitat are most appropriately addressed in recovery, conservation, and management plans, and through section 7 consultations and section 10 permits.

In determining areas that are essential to conserve the Riverside fairy shrimp, we used the best scientific and commercial data available. This included data from research and survey observations published in peer-reviewed articles, recovery criteria outlined in the Recovery Plan for Vernal Pools of Southern California (Recovery Plan) (USFWS 1998), regional Geographic Information System (GIS) vegetation and species coverages (including layers for Los Angeles, Orange, Riverside, and San Diego counties), data collected on the U.S. Marine Corps Air Station Miramar (Miramar) and U.S. Marine Corps Base Camp Pendleton (Camp Pendleton), and data collected from reports submitted by biologists holding section 10(a)(1)(A) recovery permits. As stated earlier, Riverside fairy shrimp occur in ephemeral pools and ponds that may not be present throughout a given year or from year to year. Therefore, proposed critical habitat units include a mosaic of vernal pools, ponds, and depressions currently supporting Riverside fairy shrimp, as well as areas that have supported vernal pools in the past and are still capable of supporting pools, vernal pool vegetation, and the Riverside fairy.

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, we are required to base critical habitat determinations on the best scientific and commercial data available. We consider those physical and biological features (primary constituent elements) that are essential to the conservation of the species and that may require special management considerations or protection. These features include, but are not limited to: space for individual and population growth and for normal behavior; food, water, or other nutritional or physiological requirements; cover or shelter; sites for breeding and reproduction; and habitats that are protected from disturbance or are representative of the historic and ecological distributions of a species.

The primary constituent elements for the Riverside fairy shrimp are those habitat components that are essential for the primary biological needs of foraging, sheltering, reproduction, and dispersal. These primary constituent elements are found in areas that support vernal pools or other ephemeral ponds and depressions and their associated watersheds. The primary constituent elements are: small to large pools with moderate to deep depths that hold water for sufficient lengths of time necessary for Riverside fairy shrimp incubation and reproduction, but not necessarily every year; the associated watershed(s) and other hydrologic features that support pool basins and their related pool complexes; flat or gently sloping topography; and any soil type with a clay component and/or an impermeable surface or subsurface layer known to support vernal pool habitat. All proposed critical habitat areas contain one or more of the primary constituent elements for the Riverside fairy shrimp.

In an effort to map areas essential to the conservation of the species, we used data on known Riverside fairy shrimp locations and those vernal pools and vernal pool complexes that were identified in the Recovery Plan as essential for the stabilization and recovery of the species. We then evaluated those areas based on the hydrology, watershed, and topographic features. Based on this evaluation, a 250-meter (m) (0.15 mile (mi)) Universal Transverse Mercator (UTM) grid was overlaid on top of those vernal pool complexes and their associated watersheds. The UTM grid encompasses either individual vernal pool basins or vernal pool complexes and provides additional assurances that watersheds and hydrologic processes are captured and maintained for this species. In those cases where occupied vernal pools were not specifically mapped in the Recovery Plan, we relied on recent scientific data to update the map coverage. We did not map critical habitat in sufficient detail to exclude all developed areas, such as towns or housing developments, or other lands unlikely to contain the primary constituent elements essential for conservation of the Riverside fairy shrimp. Areas of existing features and structures within the boundaries of the mapped units, such as buildings, roads, aqueducts, railroads, airports, other paved areas, lawns, and other urban landscaped areas, will not contain one or more of the primary constituent elements. Federal actions limited to these areas, therefore, would not trigger a section 7 consultation, unless they affect the species and/or primary constituent elements in adjacent critical habitat.

We also considered the existing status of lands in areas proposed as critical habitat and whether to exclude legally operative Habitat Conservation Plans (HCP) through section 4(b)(2) of the Act. We fully expect that HCPs undertaken by local jurisdictions ( e.g., counties, cities) and other parties will identify, protect, and provide appropriate management for those specific lands within the boundaries of the plans that are essential for the long-term conservation of the species. We also expect that activities covered by and carried out in accordance with the provisions of a legally operative HCP will not result in destruction or adverse modification of critical habitat.

We expect that critical habitat may be used as a tool to help identify areas within the range of the Riverside fairy shrimp that are most critical for the conservation of the species. Critical habitat designation should not preclude the development of HCPs on non-Federal lands. We consider HCPs to be one of the most important methods through which non-Federal landowners can resolve endangered species conflicts. We provide technical assistance and work closely with applicants throughout development of HCPs to help identify special management considerations for listed species.

The approximate area encompassing proposed critical habitat by county and land ownership is shown in Table 1. Proposed critical habitat includes Riverside fairy shrimp habitat throughout the species' range in the United States ( i.e., Los Angeles, Orange, Riverside, San Diego, and Ventura counties, California) and is generally based on the geographic location of vernal pools, soil types, and local variation of topographic position ( i.e., coastal mesas or inland valleys). Lands proposed are under private, State, and Federal ownership and divided into six Critical Habitat Units. A brief description of each unit and reasons for proposing it as critical habitat are presented below.

Map Unit 1: Transverse Range Critical Habitat Unit, Ventura and Los Angeles Counties, California (145 ha (350 ac)).

The Transverse Range critical habitat unit includes the vernal pools at Cruzan Mesa, Los Angeles County, and the former Carlsberg Ranch, Ventura County. These vernal pools represent the northern limit of occupied habitat for the Riverside fairy shrimp and are the last remaining vernal pools in Los Angeles and Ventura counties known to support this species. The conservation of these vernal pools is necessary to stabilize the populations of Riverside fairy shrimp in Los Angeles and Ventura counties by providing protection for the pools, as well as indicating the importance of these pools to the recovery of the species.

Map Unit 2: Los Angeles Basin-Orange Management Area, Los Angeles and Orange Counties, California. (525 ha (1,310 ac)).

The Los Angeles coastal prairie unit includes an approximately 12-ha (30-ac) area within and adjacent to the El Segundo Blue Butterfly Preserve, west of Pershing Drive at the Los Angeles International Airport. This unit is the only suitable remnant area located within the historical coastal prairie landscape, which formerly extended from Playa del Rey south to the Palos Verdes Peninsula, an area of approximately 95 km 2 (37 mi 2  ). This landscape historically included the federally endangered California orcutt grass ( Orcuttia californica ) and San Diego button-celery (Eryngium aristulatum var. parishii ). This unit also supports versatile fairy shrimp ( Branchinecta lindahli ) and western spadefoot toad ( Scaphiopus hammondii ). Riverside fairy shrimp cysts were first collected east of Pershing Drive in 1997, but adult shrimp have not been found to date, likely due to the extensive disturbance to the landscape, including the introduction of fill material, changes in water chemistry, modification of the watersheds, and the resulting shortened duration of water ponding. We are not designating the area east of Pershing Drive due to the extensive alteration of the habitat that has occurred. Considering the extensive habitat available, populations of Riverside fairy shrimp in this region were likely robust and formed the core population between the limited Cruzan Mesa and Carlsberg Ranch pools (Unit 1), at the northern end of the range of the species, and the pool groups in central and southern Orange County. The conservation of this area is necessary for the recovery of an isolated, formerly robust population that likely contains unique genetic diversity important to the overall long-term conservation of the species.

In Orange County, this critical habitat unit includes the vernal pools and vernal pool-like ephemeral ponds at the Marine Corps Air Station El Toro, Chiquita Ridge, Tejeras Creek, Rancho Viejo, Saddleback Meadows, and along the southern Orange County foothills. These vernal pools are the last remaining vernal pools in Orange County known to support this species (Service 1993). The conservation of these vernal pools is necessary to stabilize the populations of Riverside fairy shrimp in Orange County by providing specific protection to important habitat for the shrimp.

Map Unit 3: Western Riverside County Critical Habitat Unit, Riverside County, California (1,780 ha (4,400 ac)).

The Western Riverside County critical habitat unit includes the vernal pools on the Santa Rosa Plateau and in Murrieta. These populations represent the eastern limit of occupied habitat for Riverside fairy shrimp and are two of the three remaining populations in Riverside County. Conservation of these pools will provide for the conservation and recovery of the Riverside fairy shrimp, as well as stabilize the current populations of shrimp in Riverside County. The third population, Skunk Hollow, is protected as part of an approved mitigation bank that is within the Rancho Bella Vista HCP area.

Map Unit 4: North San Diego County Critical Habitat Unit, San Diego County, California (2,340 ha (5,780 ac)).

The North San Diego County critical habitat unit includes the vernal pools at Marine Corps Base Camp Pendleton. This unit encompasses approximately 45 ha (110 ac) within Camp Pendleton. Camp Pendleton has several substantial vernal pool complexes that support the Riverside fairy shrimp. The Recovery Plan for Vernal Pools of Southern California includes the Camp Pendleton pool complexes within the San Diego North Coastal Mesas Management Areas. Designation of critical habitat in this area will conserve important habitat for the Riverside fairy shrimp and will contribute to the recovery efforts identified in the Recovery Plan.

Within the jurisdiction of the City of Carlsbad, one vernal pool complex is located at the Poinsettia Lane train station. This complex is associated with a remnant parcel of coastal terrace habitat and is essential for stabilizing the species in northern San Diego County and preserving genetic diversity.

Map Unit 5: Central San Diego County Critical Habitat Unit, San Diego County, California (30 ha (75 ac)).

The Central San Diego County critical habitat unit includes a vernal pool within Marine Corps Air Station, Miramar. This location is the only known occurrence of Riverside fairy shrimp within the Central Coastal Mesa Management Area, San Diego County. In addition, this pool is identified in the Recovery Plan as necessary to stabilize the Riverside fairy shrimp in central San Diego County.

Map Unit 6: South San Diego County Critical Habitat Unit, San Diego County, California (65 ha (160 acres)).

The South San Diego County critical habitat unit includes the ephemeral basin along the United States-Mexico border. This ephemeral basin is on Federal lands (Immigration and Naturalization Service) and represents the southern limit of occupied habitat for the Riverside fairy shrimp in the United States. This basin is identified in the Recovery Plan as necessary to stabilize the Riverside fairy shrimp in southern San Diego County. The protection provided through the designation of critical habitat will assist in the recovery efforts identified in the Recovery Plan.

Section 7(a) of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out do not destroy or adversely modify critical habitat to the extent that the action appreciably diminishes the value of the critical habitat for the survival and recovery of the species. Individuals, organizations, States, local governments, and other non-Federal entities are affected by the designation of critical habitat only if their actions occur on Federal lands, require a Federal permit, license, or other authorization, or involve Federal funding.

Section 7(a) of the Act requires Federal agencies, including the Service, 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. Conference reports provide conservation recommendations to assist the agency in eliminating conflicts that may be caused by the proposed action. The conservation recommendations in a conference report are advisory.

We may issue a formal conference report if requested by a Federal agency. Formal conference reports on proposed critical habitat contain an opinion that is prepared according to 50 CFR 402.14, as if critical habitat were designated. We may adopt the formal conference report as the biological opinion when the critical habitat is designated, if no substantial new information or changes in the action alter the content of the opinion (see 50 CFR 402.10(d)).

If a species is listed or critical habitat is designated, 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. Through this consultation, we would ensure that the permitted actions do not adversely modify critical habitat.

When we issue a biological opinion concluding that a project is likely to result in the destruction or adverse modification of critical habitat, we also provide reasonable and prudent alternatives to the project, if any are identifiable. Reasonable and prudent alternatives are defined at 50 CFR 402.02 as alternative actions identified during consultation that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that the Director believes would avoid the destruction or adverse modification of critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.

Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation in instances where we have already reviewed an action for its effects on a listed species if critical habitat is subsequently designated. Consequently, some Federal agencies may request reinitiation of consultation or conferencing with us on actions for which formal consultation has been completed, if those actions may affect designated critical habitat or adversely modify or destroy proposed critical habitat.

Section 4(b)(8) of the Act requires us to describe in any proposed or final regulation that designates critical habitat a description and evaluation of those activities involving a Federal action that may adversely modify or destroy such habitat or that may be affected by such designation. When determining whether any of these activities may adversely modify or destroy critical habitat, we base our analysis on the effects of the action on the entire critical habitat area and not just on the portion where the activity will occur. Adverse effects on constituent elements or individual segments of critical habitat units generally do not result in an adverse modification determination unless that loss, when added to the environmental baseline, is likely to appreciably diminish the capability of the critical habitat to satisfy essential requirements of the species. In other words, activities that may destroy or adversely modify critical habitat include those that alter the primary constituent elements (defined above) to an extent that the value of critical habitat for both the survival and recovery of the Riverside fairy shrimp is appreciably reduced.

To properly portray the effects of critical habitat designation, we must first compare the section 7 requirements for actions that may affect critical habitat with the requirements for actions that may affect a listed species. Section 7 prohibits actions funded, authorized, or carried out by Federal agencies from jeopardizing the continued existence of a listed species or destroying or adversely modifying the listed species' critical habitat. Actions likely to “jeopardize the continued existence” of a species are those that would appreciably reduce the likelihood of the species' survival and recovery, and actions likely to “destroy or adversely modify” critical habitat are those that would appreciably reduce the value of critical habitat for the survival and recovery of the listed species (50 CFR 402.02).

Common to both definitions is an appreciable detrimental effect on both survival and recovery of a listed species. Given the similarity of these definitions, actions likely to destroy or adversely modify critical habitat would almost always result in jeopardy to the species concerned when the habitat is occupied by the species. The purpose of designating critical habitat is to contribute to a species' conservation, which by definition equates to survival and recovery. Section 7 prohibitions against the destruction or adverse modification of critical habitat apply to actions that would impair survival and recovery of the listed species. Designation of critical habitat in areas occupied by the Riverside fairy shrimp is not likely to result in a regulatory burden above that already in place due to the presence of the listed species. Additionally, designation of critical habitat in areas that are not known to be occupied by this species will also not likely result in an increased regulatory burden since the U.S. Army Corps of Engineers (Corps) requires review of projects requiring permits in all vernal pools, whether it is known that Riverside fairy shrimp are present or not. In those limited cases where activities occur on designated critical habitat where Riverside fairy shrimp and other listed species are not found at the time of the action, an additional section 7 consultation with the Service not previously required may be necessary for actions funded, authorized, or carried out by Federal agencies.

Activities on Federal lands that may affect the Riverside fairy shrimp or its designated critical habitat will require section 7 consultation. Activities on private or State lands requiring a permit from a Federal agency, such as a permit from the Corps under section 404 of the Clean Water Act, or some other Federal action, including funding ( e.g., Federal Highway Administration, Federal Aviation Administration, or Federal Emergency Management Agency) will be subject to the section 7 consultation process. Federal actions not affecting listed species or critical habitat and actions on non-Federal lands that are not federally funded or permitted do not require section 7 consultation.

Activities that, when carried out, funded, or authorized by a Federal agency, may affect critical habitat and require that a section 7 consultation be conducted include, but are not limited to:

(1) Any activity, including the regulation of activities by the Corps under section 404 of the Clean Water Act or activities carried out by or licensed by the U.S. Environmental Protection Agency, that could alter the watershed, water quality or quantity to an extent that water quality becomes unsuitable to support Riverside fairy shrimp, or any activity that significantly affects the natural hydrologic function of the vernal pool system and/or ephemeral pond or depression;

(2) Road construction and maintenance, right-of-way designation, and regulation of agricultural activities, or any activity funded or carried out by the Department of Transportation or Department of Agriculture that results in discharge of dredged or fill material, excavation, or mechanized land clearing of ephemeral and/or vernal pool basins;

(3) Regulation of airport improvement or maintenance activities by the Federal Aviation Administration;

(4) Military training and maneuvers on Camp Pendleton and Miramar, and other applicable DOD lands;

(5) Construction of roads and fences along the international border with Mexico, and associated immigration enforcement activities by the INS; and

(6) Licensing of construction of communication sites by the Federal Communications Commission.

Any of the above activities that appreciably diminish the value of critical habitat to the degree that they affect the survival and recovery of the Riverside fairy shrimp may be considered an adverse modification of critical habitat. We note that such activities may also jeopardize the continued existence of the species.

If you have questions regarding whether specific activities will constitute adverse modification of critical habitat, contact the Field Supervisor, Carlsbad Fish and Wildlife Office (see ADDRESSES section). Requests for copies of the regulations on listed wildlife, and inquiries about prohibitions and permits may be addressed to the U.S. Fish and Wildlife Service, Branch of Endangered Species, 911 N.E. 11th Ave, Portland, OR 97232 (telephone 503/231-2063; facsimile 503/231-6243).

Subsection 4(b)(2) of the Act allows us to exclude from critical habitat designation areas where the benefits of exclusion outweigh the benefits of designation, provided the exclusion will not result in the extinction of the species. The Service believes that in most instances the benefits of excluding HCPs from critical habitat designations will outweigh the benefits of including them.

The benefits of excluding Habitat Conservation Plans (HCPs) include relieving landowners, communities and counties of any additional regulatory burden that might be imposed by critical habitat. This benefit is particularly compelling given the past representations on the part of the Service that once an HCP is negotiated and approved by us after public comment, activities consistent with the plan will satisfy the requirements of the Endangered Species Act. Many HCPs, particularly large regional HCPs, take many years to develop and, upon completion, become regional conservation plans that are consistent with the recovery of covered species. Imposing an additional regulatory review after HCP completion could have a chilling effect on our entire HCP program, jeopardizing conservation efforts and conservation partnerships in many areas. Excluding HCPs provides the Service an opportunity to streamline regulatory compliance; and provides regulatory certainty for HCP participants.

Another critical benefit of excluding HCPs is that it would encourage the continued development of partnerships with HCP participants, including states, local governments, conservation organizations, and private landowners, that together can implement conservation actions we would be unable to accomplish alone. These partnerships are built on our assurance that no additional requirements, beyond the commitments in the HCP, will be imposed to comply with the Act. The designation of critical habitat in areas covered by HCPs threatens these existing partnerships, and reduces the likelihood of successful future partnerships. The common perception, even if incorrect, that critical habitat designation will impose new and additional regulatory requirements on landowners, including lands covered by HCPs, suggests to many HCP participants that the Service may not fulfill the commitments we made during HCP negotiations. By excluding areas covered by HCPs from critical habitat designation, we clearly maintain our commitments, preserve these partnerships, and, we believe, set the stage for more effective conservation actions in the future.

The benefits of including HCPs in critical habitat are normally small. The development and implementation HCPs provides important conservation benefits, including the development of biological information to guide conservation efforts to assist in species recovery and the creation of innovative solutions to conserve species while allowing for regional development. When a species for which we are considering the designation of critical habitat is a covered species in an HCP, the additional protection for this species on HCP lands that would be provided by critical habitat designation would be minimal.

One benefit provided by designation of critical habitat is the consultation requirement. The HCP would have to go through an additional consultation to look at the question of adverse modification of critical habitat. However, HCPs have already gone through a consultation process when the HCP was first established. Since HCPs address land use within the plan boundaries, habitat issues within the plan boundaries have been thoroughly addressed in HCP consultations. Therefore, in most instances we do not expect any additional regulatory impact on HCPs by critical habitat consultations. In addition, any educational benefits provided by critical habitat designation have been met by the public notice aspects of establishing an HCP, as well as by public participation in the development of many regional HCPs. As a result of the factors discussed above, when the benefits of excluding HCP land from critical habitat designation outweigh the benefits of including the land, we find that it is appropriate to exclude lands covered by legally operative HCPs.

For this designation, we find that the benefits of exclusion outweigh the benefits of designation for the San Diego Multiple Species Conservation Program (MSCP). This exclusion will not result in the extinction of the species. We discuss this and the other specific HCPs in the range of the Riverside Fairy Shrimp area below.

A number of habitat planning efforts have been completed within the range of the Riverside fairy shrimp. Principal among these are the San Diego Multiple Species Conservation Program (MSCP) in San Diego County, and the Rancho Bella Vista HCP in Riverside County. The MSCP, through its subarea plans, provides conservation measures for the Riverside fairy shrimp as a covered species, although authorization for take, should any be needed, would come from a subsequent permitting process (typically through a section 7 consultation with the Corps of Engineers). The MSCP provides that the remaining fairy shrimp habitat within the Multiple Habitat Planning Area (MHPA) should be avoided to the maximum extent practicable. Unavoidable impacts to this remaining area of habitat is to be minimized and mitigated to achieve no net loss of wetland function and value and to provide additional protective measures, including adaptive management, contained in the MSCP. The Rancho Bella Vista HCP provides conservation measures for the Riverside fairy shrimp as a covered species. We find that the benefits of exclusion outweigh the benefits of designation for these plans. The plans provides for the preservation of fairy shrimp habitat and any additional protection provided by critical habitat would be minimal. On the other hand the benefits of exclusion are high. Participants in these HCP processes have relied on the Service's assurances that once an HCP has been developed it will satisfy the participant's requirements under the ESA. Therefore, we propose that non-Federal land within the approved HCP planning areas in San Diego County and Riverside County for the Riverside fairy shrimp should be exempted from the designation, and therefore, not be proposed as critical habitat.

We do not propose to exclude the NCCP/HCP for the Central/Coastal Orange County subregion. This plan provides only conditional coverage for the Riverside fairy shrimp. Riverside fairy shrimp in vernal pool habitats that are highly degraded and/or artificially created are a covered species and take is authorized under the HCP. However, Riverside fairy shrimp in non-degraded, natural vernal pool habitats are not considered covered species under the HCP, and take, should any be needed, can be authorized only under a separate permitting process (typically through a section 7 consultation with the Corps of Engineers). Because the natural vernal pools within the Central/Coastal Orange County subregion are considered complexes of high habitat value for the Riverside fairy shrimp that are not covered by the current HCP, the benefits from designating this area as critical habitat are not outweighed by the benefits provided by the HCP. Therefore, we are proposing that the natural vernal pools at Rancho Viejo, Tejeras Creek, and Marine Corps Air Station El Toro be included as critical habitat.

HCPs currently under development are intended to provide for protection and management of habitat areas essential for the conservation of the Riverside fairy shrimp, while directing development and habitat modification to nonessential areas of lower habitat value. The HCP development process provides an opportunity for more intensive data collection and analysis regarding the use of particular habitat areas by the Riverside fairy shrimp. The process also enables us to conduct detailed evaluations of the importance of such lands to the long-term survival of the species in the context of constructing a biologically configured system of interlinked habitat blocks. We fully expect that HCPs undertaken by local jurisdictions ( e.g. , counties, cities) and other parties will identify, protect, and provide appropriate management for those specific lands within the boundaries of the plans that are essential for the long-term conservation of the species. We believe and fully expect that our analyses of these proposed HCPs and proposed permits under section 7 will show that covered activities carried out in accordance with the provisions of the HCPs and biological opinions will not result in destruction or adverse modification of critical habitat.

We provide technical assistance and work closely with applicants throughout the development of HCPs to identify lands essential for the long-term conservation of the Riverside fairy shrimp and appropriate conservation management actions. Several HCP efforts are now under way for listed and nonlisted species in areas within the range of the Riverside fairy shrimp in areas we propose as critical habitat. These HCPs, which will incorporate adaptive management, should provide for the conservation of the species. Furthermore, we will complete intra-service consultation on our issuance of section 10(a)(1)(B) permits for these HCPs to ensure permit issuance will not destroy or adversely modify critical habitat. The take minimization and mitigation measures provided under these HCPs are expected to protect and provide the conservation of essential habitat lands that lead to designation of the lands as critical habitat in this rule.

We intend for any final action resulting from this proposal to be as accurate and 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) The reasons why any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether the benefits of designation will outweigh any threats to the species due to designation;

(2) Specific information on the amount and distribution of Riverside fairy shrimp habitat, and what habitat is essential to the conservation of the species and why;

(3) Land use practices and current or planned activities in the subject areas and their possible impacts on proposed critical habitat;

(4) Any foreseeable economic or other impacts resulting from the proposed designation of critical habitat, in particular, any impacts on small entities or families; and

(5) Economic and other values associated with designating critical habitat for the Riverside fairy shrimp, such as those derived from nonconsumptive uses ( e.g. , hiking, camping, bird-watching, enhanced watershed protection, improved air quality, increased soil retention, “existence values,” and reductions in administrative costs).

In this proposed rule, we do not propose to designate critical habitat on non-Federal lands within the boundaries of an existing approved HCP and subarea plan with an executed implementation agreement (IA) for Riverside fairy shrimp approved under section 10(a)(1)(B) of the Act on or before the date of the final rule designating critical habitat. We believe that, since an existing HCP provides for long-term commitments to conserve the species and areas essential to the conservation of the species, the benefits of exclusion outweigh the benefits of inclusion. However, we are soliciting comments on the appropriateness of this approach, and on other alternative approaches for critical habitat designation in areas covered by existing approved HCPs:

The amount of critical habitat we designate for the Riverside fairy shrimp in a final rule may either increase or decrease, depending upon which approach we adopt for dealing with designation in areas of existing approved HCPs.

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 us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.

If you would like to submit comments by e-mail (see ADDRESSES section), please submit your comments as an ASCII file and avoid the use of special characters and any form of encryption. Please also include “Attn: RIN 1018-AG34” and your name and return address in your e-mail message. If you do not receive a confirmation from the system that we have received your e-mail message, contact us directly by calling our Carlsbad Fish and Wildlife Office at phone number 760/431-9440.

In accordance with our policy published in the Federal Register on July 1, 1994 (59 FR 34270), we will seek 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. We will send these peer reviewers copies of this proposed rule immediately following publication in the Federal Register . We will invite these peer reviewers to comment, during the public comment period, on the specific assumptions and conclusions regarding the proposed designation of critical habitat.

We will consider all comments and information received during the 60-day comment period on this proposed rule during preparation of a final rulemaking. Accordingly, the final decision may differ from this proposal.

The Act provides for one or more public hearings on this proposal, if requested. Requests for public hearings must be made at least 15 days prior to the close of the public comment period. We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings in the Federal Register and local newspapers at least 15 days prior to the first hearing.

Executive Order 12866 requires each agency to write regulations/notices that are easy to understand. We invite your comments on how to make proposed rules easier to understand including answers to questions such as the following:

(1) Are the requirements in the document 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 proposed rule? What else could we do to make the proposed rule easier to understand?

In accordance with Executive Order 12866, this document is a significant rule and has been reviewed by the Office of Management and Budget (OMB), under Executive Order 12866.

(a) This rule will not have an annual economic effect of $100 million or more or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. The Riverside fairy shrimp was listed as an endangered species in 1993. In fiscal years 1997 through 1999, we conducted seven formal section 7 consultations with other Federal agencies to ensure that their actions would not jeopardize the continued existence of the fairy shrimp.

Under the Act, critical habitat may not be adversely modified by a Federal agency action; critical habitat does not impose any restrictions on non-Federal persons unless they are conducting activities funded or otherwise sponsored or permitted by a Federal agency (see Table 2 below). Section 7 requires Federal agencies to ensure that they do not jeopardize the continued existence of listed species. Based upon our experience with the species and its needs, we conclude that any Federal action or authorized action that could potentially cause an adverse modification of the proposed critical habitat currently occupied by Riverside fairy shrimp would currently be considered as “jeopardy” under the Act. Accordingly, the designation of currently occupied areas as critical habitat does not have any incremental impacts on what actions may or may not be conducted by Federal agencies or non-Federal persons that receive Federal authorization or funding. Non-Federal persons that do not have a Federal “sponsorship” of their actions are not restricted by the designation of critical habitat (however, they continue to be bound by the provisions of the Act concerning “take” of the species). Additionally, designation of critical habitat in areas that are not known to be occupied by this species will also not likely result in an increased regulatory burden since the Corps requires review of projects requiring permits in all vernal pools, whether it is known that Riverside fairy shrimp are present or not. In those limited cases where activities occur on designated critical habitat where Riverside fairy shrimp and other listed species are not found at the time of the action, additional section 7 consultation with the Service not previously required may be necessary for actions funded, authorized, or carried out by Federal agencies. We will evaluate this impact through our economic analysis (required under section 4 of the Act; see Economic Analysis section of this rule).

(b) This rule will not create inconsistencies with other agencies' actions. As discussed above, Federal agencies have been required to ensure that their actions do not jeopardize the continued existence of the Riverside fairy shrimp since the listing in 1993. The prohibition against adverse modification of critical habitat is not expected to impose any additional restrictions to those that currently exist in occupied areas of proposed critical habitat. Because of the potential for impacts on other Federal agency activities, we will continue to review this proposed action for any inconsistencies with other Federal agency actions.

(c) This rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. Federal agencies are currently required to ensure that their activities do not jeopardize the continued existence of the species, and, as discussed above, we do not anticipate that the adverse modification prohibition (resulting from critical habitat designation) will have any incremental effects in areas of occupied habitat. Designation of critical habitat in areas that are not known to be occupied by this species will also not likely result in an increased regulatory burden since the Corps already requires review of projects involving vernal pools since vernal pools typically contain listed species for which the Corps must consult with us under section 7. In those limited cases where activities occur on designated critical habitat where Riverside fairy shrimp and other listed species are not found at the time of the action, section 7 consultation with the Service may be necessary for actions funded, authorized, or carried out by Federal agencies.

(d) This rule will not raise novel legal or policy issues. The proposed rule follows the requirements for determining critical habitat contained in the Act.

In the economic analysis (required under section 4 of the Act), we will determine whether designation of critical habitat will have a significant effect on a substantial number of small entities. As discussed under Regulatory Planning and Review above, this rule is not expected to result in any restrictions in addition to those currently in existence for areas of occupied critical habitat. As indicated on Table 1 (see Proposed Critical Habitat Designation section), we proposed property owned by Federal, State, and local governments and private property and identify the types of Federal actions or authorized activities that are of potential concern (Table 2). If these activities sponsored by Federal agencies within the proposed critical habitat areas are carried out by small entities (as defined by the Regulatory Flexibility Act) through contract, grant, permit, or other Federal authorization. As discussed above, these actions are currently required to comply with the listing protections of the Act, and the designation of critical habitat is not anticipated to have any additional effects on these activities in areas of critical habitat occupied by the species. Designation of critical habitat in areas that are not known to be occupied by this species will also not likely result in an increased regulatory burden since the Corps already requires review of projects involving vernal pools since vernal pools typically contain listed species for which the Corps must consult with us under section 7. For actions on non-Federal property that do not have a Federal connection (such as funding or authorization), the current restrictions concerning take of the species remain in effect, and this rule will have no additional restrictions.

In the economic analysis, we will determine whether designation of critical habitat will cause (a) any effect on the economy of $100 million or more, (b) any increases in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions, or (c) any significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. As discussed above, we anticipate that the designation of critical habitat will not have any additional effects on these activities in areas of critical habitat occupied by the species. Designation of critical habitat in areas that are not known to be occupied by this species will also not likely result in an increased regulatory burden because the Corps already requires review of projects involving vernal pools since vernal pools typically contain listed species for which the Corps must consult with us under section 7. In those limited cases where activities occur on designated critical habitat where Riverside fairy shrimp and other listed species are not found at the time of the action, section 7 consultation with the Service may be necessary for actions funded, authorized, or carried out by Federal agencies. Additionally, designation of critical habitat in areas that are not known to be occupied by this species will also not likely result in an increased regulatory burden since the Corps requires review of projects requiring permits in all vernal pools, whether it is known that Riverside fairy shrimp are present or not.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ):

(a) This rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. Small governments will be affected only to the extent that any programs having Federal funds, permits, or other authorized activities must ensure that their actions will not adversely affect the critical habitat. However, as discussed above, these actions are currently subject to equivalent restrictions through the listing protections of the species, and no further restrictions are anticipated in areas of occupied proposed critical habitat. Designation of critical habitat in areas that are not known to be occupied by this species will also not likely result in an increased regulatory burden because the Corps already requires review of projects involving vernal pools since vernal pools typically contain listed species for which the Corps must consult with us under section 7. In those limited cases where activities occur on designated critical habitat where Riverside fairy shrimp and other listed species are not found at the time of the action, section 7 consultation with the Service may be necessary for actions funded, authorized, or carried out by Federal agencies.

(b) This rule will not produce a Federal mandate of $100 million or greater in any year, that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The designation of critical habitat imposes no obligations on State or local governments.

In accordance with Executive Order 12630, the rule does not have significant takings implications. A takings implication assessment is not required. As discussed above, the designation of critical habitat affects only Federal agency actions. The rule will not increase or decrease the current restrictions on private property concerning take of the Riverside fairy shrimp. Due to current public knowledge of the species protection, the prohibition against take of the species both within and outside of the designated areas, and the fact that critical habitat provides no incremental restrictions in areas of occupied critical habitat, we do not anticipate that property values will be affected by the critical habitat designation. Designation of critical habitat in areas that are not known to be occupied by this species will also not likely result in an increased regulatory burden because the Corps already requires review of projects involving vernal pools since vernal pools typically contain listed species for which the Corps must consult with us under section 7. In those limited cases where activities occur on designated critical habitat where Riverside fairy shrimp and other listed species are not found at the time of the action, section 7 consultation with the Service may be necessary for actions funded, authorized, or carried out by Federal agencies. Additionally, critical habitat designation does not preclude development of habitat conservation plans and issuance of incidental take permits. Landowners in areas that are included in the designated critical habitat will continue to have opportunity to utilize their property in ways consistent with the survival and recovery of the Riverside fairy shrimp. This proposed rule will not “take” private property and will not alter the value of private property. Critical habitat designation is only applicable to Federal lands and to private lands if a Federal nexus exists.

In accordance with Executive Order 13132, the rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior and Department of Commerce policy, the Service requested information from and coordinated development of this critical habitat proposal with appropriate State resource agencies in California. We will continue to coordinate any future designation of critical habitat for the Riverside fairy shrimp with the appropriate State agencies. The designation of critical habitat in areas currently occupied by the Riverside fairy shrimp imposes no additional restrictions to those currently in place and, therefore, has little incremental impact on State and local governments and their activities. The designation may have some benefit to these governments in that the areas essential to the conservation of the species are more clearly defined, and the primary constituent elements of the habitat necessary to the survival of the species are specifically identified. While making this definition and identification does not alter where and what federally sponsored activities may occur, it may assist these local governments in long-range planning (rather than waiting for case-by-case section 7 consultations to occur).

In accordance with Executive Order 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. We designate critical habitat in accordance with the provisions of the Act, and plan public hearings on the proposed designation during the comment period. The rule uses standard property descriptions and identifies the primary constituent elements within the designated areas to assist the public in understanding the habitat needs of the Riverside fairy shrimp.

This rule does not contain any information collection requirements for which Office of Management and Budget approval under the Paperwork Reduction Act is required. An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a valid OMB Control Number.

We have determined that we do not need to prepare an Environmental Assessment and/or an Environmental Impact Statement as defined by the National Environmental Policy Act of 1969 in connection with regulations adopted pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

We determined that there are no Tribal lands that are essential for the conservation of the Riverside fairy shrimp because they do not support populations or suitable habitat. Therefore, we are not proposing to designate critical habitat for the Riverside fairy shrimp on Tribal lands.

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

The primary authors of this notice are the Carlsbad Fish and Wildlife Office staff (see ADDRESSES section).

For the reasons given in the preamble, we propose to amend 50 CFR part 17 as set forth below:

The public hearings will be convened to review Draft Amendment 11. This amendment contains alternatives for requiring shrimp vessel permits, shrimp vessel registration, operator permits, and for prohibiting trap gear in the royal red shrimp fishery in the EEZ.