How do I comment on this proposed AD? 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 to the address specified under the caption ADDRESSES. We will consider all comments received on or before the closing date. We may amend this proposed rule in light of comments received. Factual information that supports your ideas and suggestions is extremely helpful in evaluating the effectiveness of this proposed AD action and determining whether we need to take additional rulemaking action.

Are there any specific portions of this proposed AD I should pay attention to? The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of this proposed rule that might suggest a need to modify the rule. You may view 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 contact we have with the public that concerns the substantive parts of this proposed AD.

How can I be sure FAA receives my comment? If you want FAA to acknowledge the receipt of your comments, you must include a self-addressed, stamped postcard. On the postcard, write “Comments to Docket No. 2001-CE-33-AD.” We will date stamp and mail the postcard back to you.

What events have caused this proposed AD? The Federal Office for Civil Aviation (FOCA), which is the airworthiness authority for Switzerland, recently notified FAA of an unsafe condition that may exist on Pilatus Models PC-7, PC-12, and PC-12/45 airplanes. The FOCA reports instances of fuel leaking from the engine-driven pump on the referenced airplanes. The compression set of the gasket and diaphragm after thermal cycling could cause the gasket of the engine-driven pump to extrude between the relief valve housing and the engine-driven pump housing. This in turn relieves the torque of the relief-valve cover screws of the engine-driven pump, which could result in fuel leakage.

Information on the affected pumps follows:

What are the consequences if the condition is not corrected? Gasket material extruding from the engine-driven pump housing and relief valve attachment screws with inadequate torque, if not detected and corrected, could lead to fuel leakage and result in a fire in the engine compartment.

Is there service information that applies to this subject? Pilatus has issued the following:

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 to the address specified under the caption ADDRESSES. We will consider all comments received on or before the closing date. We may amend this proposed rule in light of comments received. Factual information that supports your ideas and suggestions is extremely helpful in evaluating the effectiveness of this 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 this proposed rule that might suggest a need to modify the rule. You may view 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 contact we have with the public that concerns the substantive parts of this proposed AD.

If you want FAA to acknowledge the receipt of your comments, you must include a self-addressed, stamped postcard. On the postcard, write “Comments Docket No. 99-CE-86-AD.” We will date stamp and mail the postcard back to you.

The FAA has received several reports of excessive internal pump wear found during normal maintenance inspections on Aerostar Models 601, 601P, 602P, and 700P airplanes. Analysis of these incidents reveals that inadequate retention of the existing oil scavenge pump rotor allows the rotor to machine its way through the end plate.

This condition, if not corrected, could result in loss of engine oil and possible loss of engine power.

Aerostar has issued Mandatory Service Bulletin SB SB600-131A, dated January 10, 1998.

The service bulletin describes procedures for replacing the Roto-Master scavenge pumps, part numbers 101633-01 or -02; and Rajay scavenge pumps, part numbers RJ1025-1 or -2; with Aerostar scavenge pumps, part number 300110-001 or -002.

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

This proposed AD would require you to replace the Roto-Master or Rajay scavenge pumps with Aerostar scavenge pumps, if not already performed.

Aerostar specifies in the service information that you replace the scavenge pumps within the next 50 hours time-in-service (TIS) or at the next annual inspection, whichever comes first. We propose a requirement that you replace the scavenge pumps within the next 50 hours TIS after the effective date of the proposed AD. We cannot enforce a compliance time of “at the next annual inspection.” We believe that 50 hours TIS will give the owners/operators of the affected airplanes enough time to have the proposed actions done without compromising the safety of the airplanes. This will allow the owners/operators to work this proposed replacement into regularly scheduled maintenance.

We estimate the proposed AD would affect 650 airplanes in the U.S. registry.

We estimate that it would take about 8 workhours to do the proposed installation of both left and right engine scavenge pumps, at an average labor rate of $60 an hour. We estimate parts costs for each airplane at $4,750. Based on the cost factors presented above, we estimate the total cost impact of the proposed installation on U.S. operators is $3,399,500, or $5,230 for each airplane.

The Regulatory Flexibility Act of 1980 was enacted by Congress to assure that small entities are not unnecessarily or disproportionately burdened by government regulations. This Act establishes “as principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation.” To achieve this principle, the Act requires agencies to solicit and consider flexible regulatory proposals and to explain the rationale for their actions. The Act covers a wide range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the determination is that the rule will, the Agency must prepare a regulatory flexibility analysis as described in the RFA.

However, if an agency determines that a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

The FAA has determined that this proposed AD could have a significant economic impact on a substantial number of small entities. However, we have determined that we should continue with this proposed action in order to address the unsafe condition and ensure aviation safety.

You may obtain a copy of the complete Regulatory Flexibility Analysis (entitled “Initial Regulatory Flexibility Analysis”) that was prepared for this proposed AD from the Docket file at the location listed under the ADDRESSES section of this document.

The proposed regulations would 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. We have 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, could have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. You may obtain a copy of the complete Regulatory Flexibility Analysis (entitled “Initial Regulatory Flexibility Analysis”) that was prepared for this proposed AD from the Docket file at the location listed under the ADDRESSES section of this document.

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

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

Submit comments using the following format:

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-414-AD.” The postcard will be date-stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-414-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The FAA has received reports indicating that contact between the compensator for the Simmonds fuel quantity indication system (FQIS) and a flapper check valve on a baffle rib in a main fuel tank was found on certain Boeing Model 757 series airplanes. Further investigation revealed that such contact is not uncommon. Over time, this contact between the compensator and flapper check valve can wear through the compensator's protective finish and result in electrical contact between the compensator and airplane structure. This condition, in conjunction with another wiring failure outside the fuel tank, if not corrected, could result in an electrical arc and a consequent potential source of ignition in the fuel tank.

The FAA has reviewed and approved Boeing Special Attention Service Bulletins 757-28-0057 and 757-28-0059, both dated September 14, 2000. These service bulletins describe procedures for installation of extender brackets for the compensators of the Simmonds FQIS in the left and right main fuel tanks. The procedures include ensuring minimum clearance between the compensators, wiring, and components, and the fuel tank structure, and testing the electrical bond in the fuel tank. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the actions specified in the service bulletin described previously.

There are approximately 938 airplanes of the affected design in the worldwide fleet. The FAA estimates that 607 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 5 work hours per airplane to accomplish the proposed installation (not including time for gaining access and closing up), and that the average labor rate is $60 per work hour. Required parts would cost approximately $404 per airplane. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $427,328, or $704 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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

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

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

In the Federal Register of July 13, 2000, (65 FR 43545) we published a notice requesting comments on a proposed rule to require employers to submit the fees for temporary foreign agricultural (H-2A) labor certification and the associated non-immigrant H-2A petition with a consolidated application form at the time of filing. The proposal also would modify the fee structure for H-2A labor certification applications. On August 17, 2000, the comment period was reopened and extended to September 18, 2000. 65 FR 50170. On September 27, 2001, the comment period was again reopened through October 29, 2001. 66 FR 49328. Because of comments received during the comment period and continuing interest in the proposal, it is desirable to extend the comment period for all interested persons. Therefore, the comment period for the proposed rule revising 20 CFR part 655, subpart B (Labor Certification Process for Temporary Agricultural Employment in the United States (H-2A Workers) is extended until December 17, 2001.

The informal public briefings will be chaired by a senior official of the Employment and Training Administration. Persons appearing at the briefings will be allowed to present their views and pose questions to Department staff and other parties presenting their views.

GBL is gamma-butyrolactone, the precursor used in the clandestine production of the Schedule I controlled substance gamma-hydroxybutyric acid (GHB). Since 1990, DEA has documented over 15,600 overdoses and law enforcement encounters in 46 states with GHB. DEA has documented 71 GHB-related deaths. The GHB obtained in the vast majority of these encounters is by conversion of GBL.

GBL was placed in the CSA as a List I chemical effective February 18, 2000, by enactment of Pub. L. 106-172, the “Hillory J. Farias and Samantha Reid Date-Rape Prohibition Act of 1999” (65 FR 21645, April 24, 2000). That law, however, did not establish a threshold. As a result of the law not establishing a threshold, all transactions in GBL are regulated transactions as described in 21 CFR 1300.02(b)(28).

DEA has identified the source for illicit GHB as being clandestinely synthesized from GBL. Law enforcement agencies have encountered GHB on at least 1,700 occasions, including more than 180 clandestine laboratories and more than 750 seized and analyzed laboratory exhibits. GHB has only recently been scheduled in the CSA as a controlled substance and GBL regulated as a List I chemical.

The Final Rule titled, “Placement of gamma-Butyrolactone in List I of the Controlled Substances Act (21 U.S.C. 802(34))” was published in the Federal Register on April 24, 2000, (65 FR 21645). It amended 21 CFR 1310.02(a) (List I chemicals) to reflect the status of GBL as a List I chemical. For regulatory purposes, DEA had no discretion in taking this action. Therefore, 21 CFR 1310.02(a) was amended as a final rule. Since it was published as a Final Rule, a threshold could not be established at that time because that would circumvent the notice and comment process. Therefore, DEA is proposing to establish a threshold for GBL in this NPRM to allow opportunity for public comment.

Law enforcement authorities have identified GBL in many GHB clandestine laboratories and documented its use as a GHB precursor. GBL is a necessary chemical precursor in the clandestine synthesis of GHB because, to date, no other chemical has been substituted for GBL in this process. Congress recognized this, and controlled GBL as a List I chemical upon enactment of Pub. L. 106-172 on February 18, 2000.

GBL is a unique chemical precursor. It can be converted to GHB by a simple chemical reaction or it can be ingested directly, without running a chemical reaction. That is, the body efficiently converts GBL to GHB when ingested. Because GBL is converted to GHB by the body's own action, GBL is routinely substituted for GHB to obtain the same type of intoxication. Congress recognized this and adopted in Pub. L. 106-172 a new subparagraph to 21 U.S.C. 802(32), which is the section of the CSA that defines a “controlled substance analogue.” The subparagraph maintains that the placement of GBL, or any other chemical, as a listed chemical does not preclude a finding that the chemical is a controlled substance analogue. DEA recognizes this concern of Congress that GBL is being used as a direct substitute for a Schedule I controlled substance. Although GBL is a chemical commodity when used by legitimate industry, diversion of GBL can be tantamount to diversion of a Schedule I controlled substance when it is intended for human consumption.

DEA is aware that GBL is diverted in a variety of sizes to produce GHB. Unscrupulous suppliers, including those operating through the internet, supply different size containers to the public. GBL diverted from well-known and well-established reputable companies has also been identified. At least fifteen companies operated internet sites that sold GBL and potassium hydroxide or sodium hydroxide. The latter two chemicals are used to convert GBL to GHB in a simple one-step chemical reaction. These sites sold GBL either separately or in “GHB kits.” A kit contains premeasured amounts of GBL and potassium hydroxide or sodium hydroxide, as needed to produce GHB. GBL has been made available to anyone who desires it in quantities ranging from 75, 150, and 450 grams, to 55-gallon drums. Most DEA documented diversion or attempted diversion of GBL is in 500-gram, three-kilogram, one-gallon, three-gallon, five-gallon, and 55-gallon sizes. Usually, multiple containers are found at GHB manufacturing sites. However, because GBL has only recently been made a listed chemical and GHB a scheduled substance, law enforcement has only recently been involved with diversion of GBL and mostly concerned with large-scale diversion.

GBL is an industrial chemical. Most GBL produced is consumed by the producer or transported in large quantities. DEA is concerned that GBL packaged in smaller individual containers is convenient to traffickers and higher risk of diversion. DEA is proposing to regulate containers that can be easily transported, stored, and generally dealt with in clandestine settings.

The largest size container identified by DEA, short of a tank-truck, is a 55-gallon (500-pound) drum. This size, as well as smaller sizes (see above), have been marketed to the public, used for conversion to GHB, and encountered in clandestine GHB laboratories. Therefore, to address diversion of GBL in 55-gallon and smaller containers, DEA is proposing that no threshold be established. However, because DEA is concerned with these smaller size containers and because large-scale industrial distributions of GBL by tank-truck and rail car containers have not, and are not, likely to be diverted this proposal includes an exemption for large container industrial distributions.

This notice proposes that large, single-container distributions of GBL are exempt from the definition of a regulated transaction. DEA identified approximately 16,330 kilograms as the smallest bulk size distribution in a single container. A tank-truck is used to transport that amount. Therefore, DEA is proposing that distributions of GBL in single container shipments of 16,000 kilograms (35,200 pounds) (net weight) or more be excluded from the definition of a regulated transaction for domestic, import and export distributions. According to this proposal, transactions involving multiple containers each holding less than 16,000 kilograms are regulated, even if the aggregate weight is over 16,000 kilograms.

The purpose of this notice is to propose a zero threshold for distribution of GBL, to propose a regulatory exemption for large bulk transactions, and obtain comments on this approach. DEA is soliciting further information on the type and extent of transactions in GBL. This information is required to help minimize the potential impact on industry while maintaining necessary regulatory controls.

Transactions involving listed chemicals that are not exempt by statute (e.g. certain transactions in chemical mixtures) may be removed from the definition of “regulated transaction” (21 U.S.C. 802(39)) if regulation of such transactions is determined to be unnecessary for purposes of law enforcement. Two options for doing so include a categorical exemption under 21 U.S.C. 802(39)(A)(iii) or the establishment of a quality threshold under 21 U.S.C. 802(39)(A).

The CSA provides that the Attorney General may establish a threshold amount for each listed chemical. A threshold amount is established to determine whether a receipt, sale, importation or exportation within a calendar month or cumulative transactions by an individual within a calendar month are considered regulated transactions. If the transaction is considered a regulated transaction, recordkeeping and reporting requirements as specified in 21 CFR part 1310 apply.

Because GBL is easily converted to GHB, GBL is desired by persons not experienced in chemistry and finds its way into both household and traditional clandestine laboratory settings. That is, GBL is converted to GHB for “individual use” and by traffickers for wider distribution. Therefore, the control of GBL is necessary for relatively small quantities of GBL used to make “individual use” amounts of GHB.

DEA is proposing a zero threshold for domestic, import, and export transactions to capture all quantities of GBL that can be easily used in a clandestine laboratory. In addition, this chemical is efficiently converted to GHB when ingested. Therefore, the zero threshold is proposed to regulate distribution of a chemical that can be, and is, directly converted into and substituted for a Schedule I controlled substance.

DEA identified GBL in quantities as small as 75 grams being sold unconcernedly to the public by unscrupulous persons. If a threshold above zero is established for GBL, DEA believes that individuals will obtain GBL at a quantity below the established threshold, not only from legitimate distributors, but also from businesses that will cater to this market.

The DEA is aware that most businesses that manufacture and/or distribute GBL have recognized its abuse and attempted to prevent its diversion, even before the chemical became a regulated chemical. The GBL that is sold irresponsibly to the general public is not manufactured clandestinely. All GBL is produced by legitimate manufacturers. GBL diverted from legitimate and responsible companies has been identified at clandestine GHB laboratories and at sites where GBL is knowingly diverted. Chemical companies that are concerned about public safety still find it difficult to prevent diversion of their products. However, if records are kept for all transactions, and the buyer understands that the sale is reportable to DEA, persons who intend to use the chemical illegitimately will be discouraged from ordering.

In addition to setting quantity-based thresholds, DEA is authorized to remove certain categories of transactions from the definition of “regulated transactions.” Under 21 U.S.C. 802(39)(A)(ii) the agency may, by regulation, exempt “any category of transaction of any category of transactions for a specific listed chemical or chemicals specified by regulation of the Attorney General as excluded from this definition as unnecessary for enforcement of this subchapter or subchapter II of this chapter.”

DEA is proposing to exempt large single container distributions of GBL based on industry's response to an earlier solicitation of information. DEA published a request for information entitled “Industrial Uses and Handling of Gamma-butyrolactone; Solicitation of Information” in the Federal Register on October 23, 1998 (63 FR 56941) in anticipation that GBL may become a regulated chemical. Interested persons supplied DEA with pertinent information. Of the eight respondents, three were manufacturers, one a European business association, and four were end-users. There was no response from distributors of GBL, except that the three manufacturers also distribute.

Domestic manufacturers informed DEA that tens of thousands of tons are produced annually. Most GBL is consumed by the manufacturer or transported in net weight of tens of thousands of pounds. The smallest tank-truck size identified by DEA, from the response to the Federal Register request for information, is 16,330 kilograms (net weight). GBL shipped by tank-truck needs to be transferred to a holding container. This equipment implies shipment is made to an established industrial location having facilities able to handle large quantities of industrial chemicals. It is likely that the added difficulty, cost, equipment, and complexity in handling this type of large bulk shipment would deter diversion. Therefore, DEA is proposing to exempt shipments of 16,000 kilograms (35,200 pounds) (net weight) or more in a single container from the definition of a regulated transaction, pursuant to 21 U.S.C. 802(39)(A)(iii).

As an alternative to the above exemption, DEA considered proposing a threshold of multiple quantity 55-gallon drums. However, DEA determined that while clandestine operations would have difficulty handling tank-truck shipments they will be able to divert smaller, self-contained receptacles of GBL, i.e., containers of 55-gallons or less. Accordingly, DEA declined to propose a threshold of multiple quantity 55-gallon drums.

DEA also considered exempting smaller quantities of GBL, such as those below 75 grams. However, because these smaller quantities would be desirable to those who would manufacture “individual use” quantities of GHB, or consume the GBL without chemical conversion to GHB, DEA decided not to propose this exemption. Further, most legitimate GBL is distributed in larger quantities. Quantities of 75 grams and less is restricted mostly to chemical clearinghouses that supply researchers. The amount of GBL distributed in these quantities is relatively small. The minimal regulatory relief from exemption of small quantity distributions in GBL, weighed against its diversion without fear of reprisal, convinced DEA not to propose small quantity exemptions.

This NPRM will not have a significant economic impact on small business. Pub. L. 106-172 amended the CSA to make GBL a List I chemical effective February 18, 2000. Regulatory impact due to registration requirements were addressed in the Final Rule “Placement of gamma-butyrolactone in List I of the Controlled Substances Act (21 U.S.C. 802(34))” (65 FR 21645). In that final rule, DEA concluded that making GBL a List I chemical would not have a significant economic impact. That conclusion was based on an estimated number of new registrants and that all distributions in GBL are regulated. This NPRM does not add new regulatory controls. In fact, it proposes to eliminate some large-scale industrial transactions from the definition of “regulated transaction,” thus granting additional relief to industry. DEA identified approximately 16,330 kilograms as the minimum amount available by tank-truck. DEA determined that clandestine operations will have difficulty handling tank-truck shipments but will be able to divert self-contained shipments of GBL, i.e., containers of 55-gallons or less. Therefore, DEA is proposing to exempt tank-truck sized shipments (16,000 kilograms or more, net weight) from the requirements of this regulation.

In accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Deputy Administrator 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.

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

This regulation meets the applicable standards set forth in Sections 3(a) and 3(b)(2) of Executive Order 12988 Civil Justice Reform.

This rulemaking does not preempt or modify any provision of state law; nor does it impose enforcement responsibilities on any state; nor does it diminish the power of any state to enforce its own laws. Accordingly, this rulemaking does not have federalism implications warranting the application of Executive Order 13132.

This rulemaking imposes no recordkeeping or reporting requirements on registrants. No information collection request is necessary.

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

The DEA makes every effort to write clearly. If you have suggestions as to how to improve the clarity of this regulation, call or write Patricia M. Good, Chief, Liaison and policy Section, Office of Diversion Control, Drug Enforcement Administration, Washington, DC 20537, telephone (202) 307-7297.

For the reasons set out above, 21 CFR part 1310 is proposed to be amended to read as follows:

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “* * * a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * * and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the West Virginia program on January 21, 1981. You can find background information on the West Virginia program, including the Secretary's findings, the disposition of comments, and conditions of approval of the West Virginia program in the January 21, 1981, Federal Register (46 FR 5915-5956). You can also find later actions concerning West Virginia's program and program amendments at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.

By letter dated September 17, 2001 (Administrative Record Number WV-1237), the West Virginia Department of Environmental Protection (WVDEP) notified OSM of proposed legislation that was approved during a special session of the West Virginia Legislature. By letter dated September 24, 2001 (Administrative Record Number WV-1238), the WVDEP sent us a proposed amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). The amendment was submitted in response to OSM's 30 CFR part 733 notification of June 29, 2001 (Administrative Record Number WV-1218). It is also intended to improve the effectiveness of the West Virginia program and to address required program amendments at 30 CFR 948.16(jjj), (kkk), and (lll).

While the proposed program amendment consists of Enrolled Senate Bill 5003, which was signed by the Governor on October 4, 2001, we are making available for public review and comment Engrossed Senate Bill 5003. Engrossed Senate Bill 5003 is identical to Enrolled Senate Bill 5003 except that the former clearly shows, via underline and strikethrough, all the statutory language that has been added or deleted from the W.Va. Code as a result of Senate Bill 5003.

The program amendment adds new W. Va. Code section 22-1-17 concerning the establishment of the special reclamation fund advisory council. The amendment also revises the provisions of W. Va. Code sections 22-3-11 concerning the special reclamation tax, and section 22-3-12 concerning site-specific bonding. You will find the full amended language of West Virginia's program amendment quoted below.

This provision is new, and provides for the creation of a special reclamation fund advisory council. The new language is quoted below.

Subsection 22-3-11(a) is amended to provide that the penal amount of the bond shall be not less than one thousand dollars nor more than five thousand dollars for each acre or fraction thereof. The existing requirement that the minimum amount of bond furnished for any type of reclamation bonding is ten thousand dollars is relocated within this subsection.

Subsection 22-3-11(g) is amended by adding a reference to section 22-1-17. As amended, the moneys accrued in the special reclamation fund are reserved only for the purposes set forth in sections 22-3-11 and 22-1-17. Language is added which provides that moneys in the special reclamation fund may be spent to reclaim abandoned lands where the amount of bond posted and forfeited is less less than the actual cost of reclamation, “and where the land is not eligible for abandoned mine land reclamation funds under article two of this chapter.” Language is deleted that limits expenditures from the special reclamation fund for the purpose of designing, constructing and maintaining water treatment systems when they are required for a complete reclamation of the affected lands to 25 percent of the fees collected. This revision is intended to satisfy the required amendment at 30 CFR 948.16(jjj). As amended, the provision provides that the secretary may use the special reclamation fund for the purpose of designing, constructing and maintaining water treatment systems where they are required for a complete reclamation of the affected lands. Also, the words “articles two and four of this chapter” are deleted from the sentence which identifies the administrative provisions for which up to 10 percent of the special reclamation funds may be spent.

Subsection 22-3-11(h) is amended by adding language that provides for a new per-ton special reclamation tax on surface coal mining operations .

Subsections 22-3-11(i) and (j) are amended by adding references to the special reclamation tax.

Subsection 22-3-11(k) is amended by adding a reference to the special “reclamation” tax and by deleting the last sentence which provided that the special reclamation tax “shall be collected whenever the liabilities of the state established in this subsection exceed the accrued amount in the fund.” This revision is intended to satisfy the required amendment at 30 CFR 948.16 (kkk).

New subsection 22-3-11(n) is added to provide that the amendments to section 22-3-11 will become effective upon the approval by OSM.

The amended section 22-3-11 is quoted below.

Subsection 22-3-12(b) is deleted in its entirety, and the remaining subsections relettered.

Various clarifying word changes have been made to subsections 22-3-12(b) through (d) (formerly (c) through (e)).

Subsection 22-3-12(f) has been deleted in its entirety.

The amended section 22-3-12 is quoted below.

Under the provisions of 30 CFR 732.17(h), we are seeking your comments, on whether the proposed amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the West Virginia program.

Send your written or electronic comments to OSM at the address given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendation(s). In the final rulemaking, we will not necessarily consider or include in the administrative record any comments received after the time indicated under DATES or at locations other than the Charleston Field Office.

Please submit Internet comments as an ASCII file avoiding the use of special characters and any form of encryption. Please also include “Attn: SPATS NO. WV-093-FOR” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Charleston Field office at (304) 347-7158.

We will make comments, including names and addresses of respondents, available for public review during our normal business hours. We will not consider anonymous comments. If individual respondents request confidentiality, we will honor their request to the extent allowable by law. Individual respondents who wish to withhold their name or address from public review, except for the city or town, must state this prominently at the beginning of their comment 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 wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4:30 p.m. (local time), on November 8, 2001. We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold the hearing.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at a public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.

If you are disabled and need special accommodation to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT.

If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT. All such meetings are open to the public and, if possible, we will post notices of the meetings at the locations listed under ADDRESSES. We will make a written summary of each meeting a part of the Administrative Record.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart federal regulations.

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that, to the extent allowable by law, this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each such program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met.

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA. Section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse affect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a decision on a proposed State regulatory program provision does not constitute a major Federal action within the meaning of section 102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 4332(2)(C)). A determination has been made that such decisions are categorically excluded from the NEPA process (516 DM 8.4.A).

This rule does not contain information collection requirements that require approval by the OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The Department of the Interior has determined that this 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. ). The State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. Accordingly, this rule will ensure that existing requirements previously promulgated by OSM will be implemented by the State. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulation.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, geographic regions or Federal, State, or local government agencies; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This determination is based upon the fact that the State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose a cost of $100 million or more in any given year on any governmental entity or the private sector.

The early regulatory history for this rulemaking appears in the preamble of the final rule entitled “Raising the Threshold of Property Damage for Reports of Accidents Involving Recreational Vessels” [66 FR 21671 (May 1, 2001)].

After we issued the final rule on May 1, 2001, a State boating-law administrator expressed concern about a provision in the rule requiring reports of all collisions involving two or more vessels resulting exclusively in damage to property, regardless of the amount of such damage.

Currently, few States have statutory authority to require reports of multi-vessel accidents that result neither in personal injury nor in any damage to property. Further, States' legislative calendars precluded compliance by the published effective date, July 2, 2001. We note that States' legislation would be unnecessary if our provision for reporting collisions of two or more vessels included a threshold of $500, since all States do now maintain such a threshold. Because of the concern raised about the impact of our provision on States' legislation, the Coast Guard delayed implementation of that provision, in 33 CFR 173.55(a)(3), requiring a report whenever “* * * a collision occurs involving two or more vessels, regardless of the amount of damage to property; * * *”, and provided a 90-day comment period on the provision.

In response to the notice of partial suspension of effective date, we received 28 comments, including a request from the Chairman of the Boating Accident Investigation Reporting and Analysis Committee (BAIRAC) of NASBLA to extend the comment period beyond the meeting of BAIRAC in October 2001. We are reopening the comment period until November 23, 2001 to let BAIRAC discuss the suspended provision at that meeting and submit a comment to the docket. We are also reopening it to anyone else who would like to submit a comment, but please do not re-submit comments already in the docket.

We encourage you to participate in this rulemaking by submitting your comments to the Docket Management Facility as specified in ADDRESSES. Please submit comments and materials related only to the provision in 33 CFR 173.55(a)(3), requiring a report whenever “* * * a collision occurs involving two or more vessels, regardless of the amount of damage to property; * * *”. We will consider comments received during this reopened comment period and may change 33 CFR 173.55(a)(3) in response to the comments.

For additional information, please see the immediate final rule published in the “Rules and Regulations” section of this Federal Register .

This is a summary of the Commission's Notice of Proposed Rule Making, MM Docket No. 01-298, adopted October 3, 2001 and released October 12, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center, Portals II, 445 Twelfth Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contact.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

This is a synopsis of the Commission's Notice of Proposed Rule Making, MM Docket No. 01-291; MM Docket No. 01-292; MM Docket No. 01-293; MM Docket No. 01-294; and MM Docket No. 01-295, adopted October 3, 2001, and released October 12, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center (Room CY-A257), 445 Twelfth Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, Qualtex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (202) 863-2893.

In addition to the above, the Commission requests comments on a petition filed by Jeraldine Anderson proposing the allotment of Channel 238A at Ballinger, Texas, as that community's second local commercial FM service. Channel 238A requires a site restriction 12.8 kilometers southeast of the community, utilizing coordinates 31-38-03 NL and 99-53-13 WL. Additionally, as Ballinger, Texas, is located within 320 kilometers of the U.S.-Mexico border, concurrence of the Mexican government will be requested for this allotment.

The Commission further requests comments on a petition filed by Jeraldine Anderson proposing the allotment of Channel 250C3 at Crowell, Texas, as that community's potential second local FM transmission service. Channel 250C3 requires a site restriction 3.1 kilometers southwest of the community, utilizing coordinates 33-57-54 NL and 99-44-59 WL.

The Commission further requests comments on a petition filed by Jeraldine Anderson proposing the allotment of Channel 293A at Eldorado, Texas, as an additional local commercial FM transmission service at that community. Channel 293A requires a site restriction 1.3 kilometers southwest of the community, utilizing coordinates 30-51-14 NL; 100-36-43 WL. Additionally, as Eldorado is located within 320 kilometers of the U.S.-Mexico border, concurrence of the Mexican government will be requested for this allotment.

The Commission further requests comments on a petition filed by Linda Crawford proposing the allotment of Channel 231A at Jayton, Texas, as that community's first local aural transmission service. Channel 231A can be allotted to Jayton at city reference coordinates 33-14-53 NL and 100-34-24 WL.

Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

Thlaspi californicum (Kneeland Prairie penny-cress) is a perennial member of the mustard family (Brassicaceae). The species grows from 9.5 to 12.5 centimeters (3.7 to 4.9 inches) tall with a basal cluster of green to purplish, sparsely toothed leaves. Leaves borne along the stem are sessile (without a stalk) with entire to toothed margins. The white flowers have strongly ascending flower stalks. Thlaspi californicum flowers from April to June. The fruit is a sharply pointed silicle (a short fruit typically no more than two to three times longer than wide), and is elliptic to obovate, without wings, and with an ascending stalk.

Serano Watson (1882) first described Thlaspi californicum based on a collection made by Volney Rattan from among rocks at Kneeland Prairie at 760 meters (m) (2,500 feet (ft)) elevation. Jepson (1925) later referred to it as T. alpestre var. californicum. Munz (1959) referred to the taxon as T. glaucum var. hesperium ; however, he segregated it as T. californicum in his supplement (Munz 1968). Holmgren (1971) assigned the name Thlaspi montanum var. californicum . Finally, the taxon was returned to T. californicum in the current Jepson Manual (Hickman 1993; Rollins 1993).

Thlaspi californicum is endemic to serpentine soils in Kneeland Prairie, located in the outer north coast range of Humboldt County, California. Serpentine soils are derived from ultramafic rocks (rocks with unusually large amounts of magnesium and iron). The entire known distribution of T. californicum occurs on Ashfield Ridge at elevations ranging from 792 to 841 m (2,600 to 2,760 ft).

Plant communities in Kneeland Prairie include the following: California annual and introduced perennial grasslands; seasonal and perennial wetlands; and mixed oak/Douglas-fir woodlands (SHN 1997). Boulder outcrops in Kneeland Prairie form scattered knobs that protrude out of the grasslands. The majority of these outcrops are volcanic rock types such as greenstone pillow basalt, basalt, tuff, or agglomerates (State of California 1975). Along Ashfield Ridge and nearby side ridges, many of the outcrops are serpentine (State of California 1975). The serpentine outcrops exhibit a distinctive flora compared to the surrounding grassland (SHN 2001). In addition to Thlaspi californicum , serpentine outcrops on Ashfield Ridge support the following two special interest plants, both considered as rare by the California Native Plant Society: Fritillaria purdyi (Purdy's fritillary) and Astragalus rattanii (Rattan's milk-vetch) (SHN 1997).

Little is known about the reproductive biology of Thlaspi californicum . Some members of the genus, such as T. montanum , are known to be outbreeding, while others, such as T. alpestre , are primarily self-pollinating (Holmgren 1971). Due to its very close taxonomic relationship to T. montanum , T. californicum is almost certainly an outbreeder. The principal pollinators are believed to be generalist bees and/or flies (SHN 2001).

The only known occurrence of Thlaspi californicum includes five relatively distinct groups of plants all located within 300 m (980 ft) of each other. The area occupied by the species is divided by the Kneeland Airport and Mountain View Road. We do not know if genetic interchange occurs between plants in these separate groups; therefore, the five areas will be referred to as individual colonies. The location was described as consisting of three colonies in 1990 (Imper 1990; SHN 2001); a fourth colony was discovered in 1999 (SHN 2001), and one additional colony in 2001 (SHN 2001).

In 1997, the largest colony was estimated at 10,840 plants (SHN 1997); this estimate was later corrected to 9,919 plants (SHN 2001). The sizes of the other two colonies known in 1997 were 140 and 40 plants (SHN 1997); therefore, the total revised estimate in 1997 was 10,099 plants. In 2001, the total number of Thlaspi californicum plants was estimated at approximately 5,293 (SHN 2001), with 5,142 plants at the largest colony, and 90 plants, 30 plants, 16 plants, and 15 plants at the four smaller colonies. These data suggest the total number of plants has declined by about 48 percent since 1997, even though two new small colonies have been discovered (SHN 2001).

Historically, several land use activities may have altered the distribution and abundance of Thlaspi californicum colonies. These activities included construction of the county road in the 1800s (currently Mountain View Road), the Kneeland Airport in 1964, and the California Department of Forestry & Fire Protection (CDFFP) helitack base in 1980. Prior to 1964, suitable habitat for T. californicum on Ashfield Ridge consisted of two serpentine patches (1.9 hectares (ha) (4.7 acres (ac)) and 0.6 ha (1.4 ac)) and scattered smaller patches of 0.01 ha (0.02 ac) to 0.2 ha (0.6 ac) in size. The two larger serpentine outcrops formed a semi-continuous ridgetop exposure covering more than 2.4 ha (6 ac), extending in an east-west direction along the top of the ridge in the area now occupied by the airstrip, county road, and helitack base (SHN 2001).

Construction of the county road, airstrip, and helitack base fragmented the two largest patches of suitable habitat into four relatively isolated patches. The construction also reduced the total available habitat by approximately 50 percent. No data are available on the distribution or number of individuals prior to this habitat alteration. However, anecdotal evidence indicates that prior to this habitat loss these colonies occupied more area or formed one large colony. The impacts on population or community processes from this habitat loss and possible population reduction are unknown. In general, smaller serpentine outcrops are known to support fewer native species and more exotic species (Wolf and Harrison 2001). Smaller outcrops may also be more vulnerable to recreational impacts, trampling, and modification of the unique serpentine soil chemistry as a result of enrichment from the surrounding meadow system (SHN 2001). All of these factors, in addition to a reduction and/or fragmentation of the site, increase the likelihood of extinction.

In 2001, all the known colonies occupied an estimated 0.3 ha (0.8 ac), divided among the five colonies as follows: 0.29 ha (0.72 acre); 0.02 ha (0.05 ac); 0.008 ha (0.02 ac); 0.004 ha (0.01 ac); and 0.002 ha (0.005 ac). The five known colonies occur on three separate serpentine outcrops, but currently occupy only about 29 percent of the suitable habitat on these three outcrops (total area 1.1 ha (2.8 ac)). In addition to the three occupied outcrops, fourteen unoccupied serpentine outcrops occur on Ashfield Ridge, ranging in size from 0.01 ha (0.02 ac) to 0.2 ha (0.6 ac) (combined area of 0.9 ha (2.2 ac)). The distances between the outcrops range from 10 m to 85 m (33 ft to 279 ft). All of these patches are located within 400 m (1,312 ft) of the largest T. californicum colony. Serpentine soils contiguous with and in the vicinity of the colonies are the most likely to support T. californicum in the future.

Historic records for Thlaspi californicum refer to Kneeland Prairie and Ashfield Ridge as site locations (Watson 1882; Holmgren 1971). Over 99 percent of the serpentine soils in Kneeland Prairie occur on Ashfield Ridge. Two additional small serpentine outcrops are located on a ridge approximately 4.8 kilometers (km) (3 miles (mi)) southwest of Ashfield Ridge (State of California 1975). We do not have any historic records to show that these two outcrops were once occupied by T. californicum or current records to indicate that they are occupied. The next nearest known serpentine outcrops to Kneeland Prairie occur approximately 6.4 km (4 mi) southeast of Ashfield Ridge at Iaqua Buttes. The serpentine at Iaqua Buttes supports the more widespread T. montanum. No evidence of T. californicum or intergradation between T. californicum and T. montanum was observed during surveys at the Iaqua Buttes site in 2001 (SHN 2001). Thlaspi montanum also occurs on serpentine soils in the vicinity of Horse Mountain approximately 24 km (15 mi) northeast of Ashfield Ridge (SHN 2001). Evidence that the historic range of T. californicum ever extended beyond Kneeland Prairie does not currently exist (SHN 2001).

Federal Government actions for Thlaspi californicum began when we published an updated notice of review (NOR) for plants on December 15, 1980 (45 FR 82480). This notice included T. californicum (referred to as T. montanum var. californicum ) as a category 2 candidate. Category 2 candidates were those taxa for which data in our possession indicated listing might be appropriate, but for which additional biological information was needed to support a proposed rule. On November 28, 1983, we published a supplement to the 1980 NOR (48 FR 53640) as well as the subsequent revision on September 27, 1985 (50 FR 39526) which included T. m. var. californicum as a category 2 candidate.

We published revised NORs on February 21, 1990 (55 FR 6184) and September 30, 1993 (58 FR 511440). In both notices, we included Thlaspi montanum var. californicum as a category 1 candidate. Category 1 candidates are those taxa for which we have on file sufficient information on biological vulnerability and threats to support preparation of listing proposals, but issuance of the proposed rules are precluded by other pending listing proposals of higher priority. In our February 28, 1996, Federal Register Notice of Review of Plant and Animal Taxa that are Candidates for Listing as Endangered or Threatened Species (CNOR) (61 FR 7595), we discontinued designation of multiple categories of candidates. Only those taxa meeting the definition of former category 1 are now considered candidates for listing. Thlaspi montanum var. californicum was included as a candidate species in the February 28, 1996, notice. Our September 19, 1997, CNOR (62 FR 49397) included T. californicum as a candidate for listing.

On February 12, 1998 (63 FR 7112), we published a proposal to list Thlaspi californicum as endangered. Our October 25, 1999, CNOR (64 FR 57533) included T. californicum as a taxon proposed for listing as endangered. The final rule listing T. californicum as an endangered species was published on February 9, 2000 (65 FR 6332).

Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state that designation of critical habitat is not prudent when one or both of the following situations exist: (1) the species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species; or (2) such designation of critical habitat would not be beneficial to the species. At the time Thlaspi californicum was proposed, we determined that designation of critical habitat for T. californicum was not prudent because of a concern that publication of precise maps and descriptions of critical habitat in the Federal Register could increase the vulnerability of this species to incidents of collection and vandalism. We also indicated that designation of critical habitat was not prudent because we believed it would not provide any additional benefit beyond that provided through listing as endangered.

A series of court decisions for a variety of species overturned our determinations that designation of critical habitat would not be prudent ( e.g., Natural Resources Defense Council v. U.S. Department of the Interior 113 F. 3d 1121 (9th Cri. 1997); Conservation Council for Hawaii v. Babbitt, 2 F. Supp. 2d 1280 (D. Hawaii 1998)). Based on the standards applied in those judicial opinions, we reexamined the question of whether designation of critical habitat for Thlaspi californicum was prudent. At the time T. californicum was listed, we found that designation of critical habitat was prudent.

On June 17, 1999, our failure to issue final rules for listing Thlaspi californicum and nine other plant species as endangered or threatened, and our failure to make a final critical habitat determination for the 10 species was challenged in Southwest Center for Biological Diversity and California Native Plant Society v. Babbitt (Case No. C99-2992 (N.D.Cal.)). On May 19, 2000, the U.S. District Court for the Northern District of California issued an order setting the timetable for the promulgation of the critical habitat designations. We agreed to complete the proposed critical habitat designations for the 10 species by September 30, 2001. However, in mid-September 2001, plaintiffs agreed to a brief extension of this due date until October 19, 2001. We will make our final critical habitat determinations no later than May 1, 2002.

Critical habitat is defined in section 3(5)(A) 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. Areas outside the geographic area currently occupied by the species shall be designated as critical habitat only when a designation limited to its present range would be inadequate to ensure the conservation of the species.

Conservation is defined in section 3(3) of the Act as the use of all methods and procedures which are necessary to bring any endangered or threatened species to the point at which listing under the Act is no longer necessary. Regulations under 50 CFR 424.02(j) define special management considerations or protection to mean any methods or procedures useful in protecting the physical and biological features of the environment for the conservation of listed species.

In order to be included in a critical habitat designation, the habitat must first be “essential to the conservation of the species.” Critical habitat designations identify, to the extent known using the best scientific and commercial data available, habitat areas that provide essential life cycle needs of the species (i.e., areas on which are found the primary constituent elements, as defined at 50 CFR 424.12(b)).

When we designate critical habitat at the time of listing, as required under Section 4 of the Act, or under short court-ordered deadlines, we may not have the information necessary to identify all areas which are essential for the conservation of the species. Nevertheless, we are required to designate those areas we know to be critical habitat, using the best information available to us.

We will designate only currently known essential areas. Essential areas should already have the features and habitat characteristics that are necessary to sustain the species. We will not speculate about what areas might be found to be essential if better information became available, or what areas may become essential over time. If the information available at the time of designation does not show that an area provides essential life cycle needs of the species, then the area should not be included in the critical habitat designation. We will not designate areas that do not now have the primary constituent elements, as defined at 50 CFR 424.12(b), that provide essential life cycle needs of the species.

Our regulations state that, “The Secretary shall designate as critical habitat areas outside the geographic area presently occupied by the species only when a designation limited to its present range would be inadequate to ensure the conservation of the species.” (50 CFR 424.12(e)). Accordingly, we do not designate critical habitat in areas outside the geographic area occupied by the species unless the best scientific and commercial data demonstrate that the unoccupied areas are essential for the conservation needs of the species.

Our Policy on Information Standards Under the Endangered Species Act, published in the Federal Register on July 1, 1994 (59 FR 34271), provides criteria, establishes procedures, and provides guidance to ensure that our decisions represent the best scientific and commercial data available. It requires our biologists, to the extent consistent with the Act and with the use of the best scientific and commercial data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When determining which areas are critical habitat, a primary source of information should be the listing package for the species. Additional information may be obtained from a recovery plan, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, and biological assessments, unpublished materials, and expert opinion or personal knowledge.

As required by the Act and regulations (section 4(b)(2) and 50 CFR 424.12) we used the best available scientific information in determining which areas are essential for the conservation of Thlaspi californicum . This information included data from the following sources: 1993 United States Geological Survey (USGS) 1:24,000 scale 3.75′ infrared color digital orthophotographic quarter quadrangle images; geologic map of the Van Duzen River Basin (State of California 1975); 1962 panchromatic 1:12,000 scale aerial photograph HCN-222-17; ownership parcels from the Humboldt County Planning Department, updated as of August 2000; recent biological surveys and reports; and discussions with botanical experts. We also conducted or contracted for site visits, either cursory or more extensive, at locations on private lands where access had been obtained, on State lands managed by CDFFP, and on public lands managed by Six Rivers National Forest and the Bureau of Land Management, including Iaqua Buttes and Board Camp Mountain.

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas to propose as critical habitat, 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 include, but are not limited to: space for individual and population growth, and for normal behavior; food, water, air, light, minerals or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing of offspring, germination, or seed dispersal; and habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.

The long-term probability of survival and recovery of Thlaspi californicum is dependent upon a number of factors, including protection of serpentine sites containing existing colonies; protection of all serpentine sites on Ashfield Ridge to allow for recolonization or expansion; preservation of the connectivity between serpentine sites to allow gene flow between the colonies through pollinator activity and seed dispersal mechanisms; and protection and maintenance of proximal areas for the survival of pollinators and seed dispersal agents. In addition, the small, fragmented distribution of this species makes it especially vulnerable to edge effects from adjacent activities, such as the spread of non-native species; nearby uses of herbicides and pesticides; livestock grazing; and erosion due to natural or diverted flow patterns.

Based on our knowledge of this species to date, the primary constituent elements of critical habitat for Thlaspi californicum consist of, but are not limited to:

(1) Thin rocky soils that have developed on exposures of serpentine substrates (SHN 2001);

(2) Plant communities that support a relatively sparse assemblage of serpentine indicator or facultative-serpentine indicator species, including various native forbs and grasses but not trees or shrubs, such that competition for space and water (both above and below ground), and light is reduced, compared to the surrounding habitats (SHN 2001). Known associated species include: Festuca rubra (red fescue), Koeleria macrantha (junegrass), Elymus glaucus (blue wildrye), Eriophyllum lanatum (woolly sunflower), Lomatium macrocarpum (large-fruited lomatium), and Viola hallii (Hall's violet) (SHN 2001);

(3) Serpentine substrates that contain 15 percent or greater (by surface area) of exposed gravels, cobbles, or larger rock fragments, which may contribute to alteration of factors of microclimate, including surface drainage and moisture availability, exposure to wind and sun, and temperature (SHN 2001); and

(4) Prairie grasslands and oak woodlands located within 30 m (100 ft) of the serpentine outcrop area on Ashfield Ridge. Protection of these habitats is essential to the conservation of the Thlaspi californicum in that it will provide connectivity among the serpentine sites, help to maintain the hydrologic and edaphic integrity of the serpentine sites, and support populations of pollinators and seed dispersal organisms.

In our delineation of the critical habitat unit, we selected areas to provide for the conservation of Thlaspi californicum at the only location it is known to occur. Adult individuals of the species are currently only growing on approximately 0.3 ha (0.8 ac) of land on Ashfield Ridge in Kneeland Prairie. However, the area essential for the conservation of the species is not restricted solely to the area where the plant is physically visible. It must include an area large enough to maintain the ecological functions upon which the species depends ( e.g., the hydrologic and edaphic conditions).

We first mapped all the known T. californicum occurrences. Due to the historic loss and fragmentation of the largest patches of suitable habitat, we also mapped all suitable habitat in proximity to the known occurrences. Maintaining the number and distribution of serpentine outcrops on Ashfield Ridge will help to ensure the long-term viability of T. californicum , as high-quality habitat patches in close proximity to a source population which have the highest likelihood of future occupancy (Murphy et al. 1990). Protection of these outcrops will provide a range in habitat conditions, for example, moisture availability, temperature, and wind exposure, which will optimize the opportunities for recolonization or expansion and reduce the likelihood of extinction due to stochastic events. They will also provide protection of undetected T. californicum colonies and seed banks.

We also mapped grasslands and oak woodlands surrounding the serpentine outcrops. These areas provide connectivity between all serpentine outcrops; maintain the hydrologic and edaphic integrity of the serpentine sites; and support biological agents of pollination and seed dispersal deemed necessary for the conservation of the species. Inclusion of the grasslands and oak woodlands will also minimize impacts to the serpentine outcrops resulting from external peripheral influences, such as erosion, grazing, or the spread of exotic species.

At this time, we do not propose to designate as critical habitat any serpentine outcrops within Kneeland Prairie, other than the outcrops on Ashfield Ridge. Serpentine outcrops not located on Ashfield Ridge, however, may also be necessary for the conservation of Thlaspi californicum . Since T. californicum has an extremely restricted range, establishment at new locations may be necessary to provide insurance against stochastic events. A draft recovery plan for this species has not been completed. The recovery plan may provide additional guidance regarding areas essential for the conservation of the species. If necessary, we will reexamine our critical habitat designation after completion of the recovery plan.

We considered ownership status in proposing areas as critical habitat. Thlaspi californicum is known only to occur on State, county, and private lands. We could not depend on Federal lands for critical habitat designation because we are not currently aware of any Federal lands occupied by this taxon. We are not aware of any Tribal lands in or near our proposed critical habitat unit for T. californicum . However, should we learn of any Tribal lands in the vicinity of the critical habitat designation subsequent to this proposal, we will coordinate with the Tribes before making a final determination as to whether any Tribal lands should be included as critical habitat for T. californicum .

We used a geographic information system (GIS) to facilitate the identification of proposed critical habitat. We used information from recent biological surveys and reports; discussions with botanical experts; and locations of serpentine soils to create GIS data layers. The serpentine soil sites were derived from a geologic map, infrared color digital orthophotos, and global positioning system data collected in the field during 2000 and 2001. These data layers were created on a base of 1:24,000 scale USGS 3.75′ infrared color digital orthophotographic quarter quadrangle images. We used the data layers to map the primary constituent elements. We defined the boundaries for the proposed critical habitat unit by overlaying this map with a 100-m Universal Transverse Mercator (UTM) North American Datum of 1927 (NAD27) grid and removing all NAD27 grid cells that did not contain the primary constituent elements.

In selecting areas of proposed critical habitat, we attempted to avoid developed areas and other lands unlikely to contribute to the conservation of Thlaspi californicum . However, we did not map the critical habitat unit in sufficient detail to exclude all such areas. Existing features and structures within the critical habitat unit boundary, such as buildings, roads, airports, and other paved 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.

As noted in the Critical Habitat section, “special management considerations or protection” is a term that originates in the definition of critical habitat. We believe the proposed area may require special management considerations or protection because Thlaspi californicum occupies an extremely localized range and the number of individuals may be declining. Potential threats to the habitat of T. californicum include: Expansion of Kneeland Airport and CDFFP helitack base; road realignment; fires caused by airplane or vehicular accidents; contaminant spills; erosion; application of herbicides and pesticides; livestock grazing; and introduction and spread of exotic species.

Additional special management is not required if adequate management or protection is already in place. Adequate special management considerations or protection is provided by a legally operative plan/agreement that addresses the maintenance and improvement of the primary constituent elements important to the species and manages for the long-term conservation of the species. Currently, no plans meeting these criteria have been developed for T. californicum .

The proposed critical habitat area described below includes all the primary constituent elements discussed above, and constitutes our best assessment at this time of the areas needed for the species' conservation. Critical habitat is being proposed for Thlaspi californicum at the only location it is known to occur. We are not proposing any critical habitat units that do not contain the species.

We propose designating one unit of critical habitat, comprising 30 ha (74 ac), surrounding Kneeland Airport and roughly bisected by Mountain View Road. The unit includes all five known colonies and all other serpentine outcrops in close proximity to the colonies. All of the proposed critical habitat for Thlaspi californicum is located on Ashfield Ridge in Kneeland Prairie, Humboldt County, California. This ridge separates the Van Duzen and Mad River basins near the community of Kneeland in central Humboldt County.

The unit contains approximately 2 ha (5 ac) of serpentine soils. Approximately 16 percent of the serpentine soils are known to be occupied. However, undetected colonies may exist on the serpentine soils within the unit. The approximate area, by land ownership, of this unit is shown in Table 1. Approximately 5 percent (2 ha (4 ac)) of this area consists of State lands, while County lands comprise approximately 11 percent (3 ha (8 ac)), and private lands comprise approximately 84 percent (25 ha (62 ac)). No Federal lands are within the proposed critical habitat unit. This species is not currently known to occur or to have occurred historically on Federal lands.

Habitat is often dynamic, and populations may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that may eventually be determined to be necessary for the recovery of the species. For these reasons, all should understand that critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery. Areas outside the critical habitat designation will continue to be subject to conservation actions that may be implemented under section 7(a)(1) and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard and the applicable prohibitions of section 9, as determined on the basis of the best available information at the time of the action. If Thlaspi californicum is discovered outside of the designated critical habitat area, it is possible that federally funded or assisted projects affecting plants outside of the designated critical habitat area may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome.

Critical habitat receives protection under section 7 of the Act through the prohibition against destruction or adverse modification of critical habitat with regard to actions carried out, funded, or authorized by a Federal agency. Section 7 also requires Federal agencies to confer with the Service on any actions that are likely to result in the destruction or adverse modification of critical habitat. In our regulations at 50 CFR 402.02, we define destruction or adverse modification as “* * * a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical.” Aside from the added protection that may be provided under section 7, the Act does not provide other forms of protection to lands designated as critical habitat. Because consultation under section 7 of the Act does not apply to activities on private or other non-Federal lands that do not involve a Federal nexus, critical habitat designation would not afford any additional protections under the Act against such activities.

Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, permit, 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) of the Act 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 Federal agencies in eliminating conflicts that may be caused by their proposed action(s). The conservation measures in a conference report are advisory. If a species is listed or critical habitat is designated, section 7(a)(2) requires Federal agencies to ensure that actions 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 (action agency) must enter into consultation with us. Through this consultation we would ensure that the permitted actions do not jeopardize the species or destroy or 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 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 on previously reviewed actions in instances where critical habitat is subsequently designated and the Federal agency has retained discretionary involvement or control over the action or such discretionary involvement or control is authorized by law. Consequently, some Federal agencies may request reinitiation of consultation or conference 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.

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 Thlaspi californicum is discovered on Federal lands, those activities on Federal lands that may affect Thlaspi californicum or its critical habitat would require a section 7 consultation. Activities on private or State lands requiring a permit from a Federal agency, such as a permit from the Army Corps of Engineers under section 404 of the Clean Water Act, a section 10(a)(1)(B) permit from the Service, or some other Federal action, including funding (e.g., Federal Housing Administration or Federal Emergency Management Agency), will also continue to be subject to the section 7 consultation process. Federal actions not affecting listed species or critical habitat and actions on non-Federal and private lands that are not federally funded, authorized, or permitted do not require section 7 consultation.

Section 4(b)(8) of the Act requires us to evaluate briefly and describe within any proposed or final regulation that designates critical habitat those activities involving a Federal action that may adversely modify such habitat or that may be affected by such designation. Activities that may destroy or adversely modify critical habitat are those that appreciably reduce the value of critical habitat for both the survival and recovery of Thlaspi californicum. We note that such activities may also jeopardize the continued existence of the species.

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. 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.

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, particularly when the area of the proposed action is occupied by the species concerned. Designation of critical habitat in areas occupied by Thlaspi californicum is not likely to result in a regulatory burden above that already in place due to the presence of the listed species. Designation of critical habitat in areas not occupied by T. californicum may result in an additional regulatory burden when a Federal nexus exists.

Activities that, when carried out, funded, or authorized by a Federal agency, may directly or indirectly destroy or adversely modify critical habitat include, but are not limited to:

(1) Ground disturbance of serpentine outcrops and grassland and oak woodland areas, including but not limited to, grading, ripping, tilling, and paving;

(2) Alteration of serpentine outcrops, including but not limited to, removal of boulders, mining, and quarrying;

(3) Removing, destroying, or altering vegetation in the critical habitat unit, including but not limited to inappropriately managed livestock grazing, clearing, introducing or encouraging the spread of nonnative species, recreational activities, and maintaining an unnatural fire regime either through fire suppression or prescribed fires that are too frequent or poorly timed;

(4) Hydrologic changes or other activities that alter surface drainage patterns resulting in erosion of serpentine outcrops or adjacent areas, including but not limited to water diversion, groundwater pumping, irrigation, and erosion control;

(5) Construction or maintenance activities that destroy or degrade critical habitat, including but not limited to road building, building construction, airport expansion, drilling, and culvert maintenance or installation;

(6) Application or runoff of pesticides, herbicides, fertilizers, or other chemical or biological agents; and

(7) Emergency response and clean-up of fuel or other contaminant spills.

Designation of critical habitat could affect the following agencies and/or actions: development on private, State, or county lands requiring permits or funding from Federal agencies, such as the U.S. Army Corps of Engineers, the Department of Housing and Urban Development, the Federal Aviation Administration, or the Federal Highway Administration; construction of communication sites licensed by the Federal Communications Commission; and authorization of Federal grants or loans. These actions would be subject to the section 7 process. Where federally listed wildlife species occur on private lands proposed for development, any habitat conservation plans submitted by the applicant to secure a permit to take according to section 10(a)(1)(B) of the Act would be subject to the section 7 consultation process.

If you have questions regarding whether specific activities will likely constitute adverse modification of critical habitat, contact the Project Leader, Arcata 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, Region 1, Division of Endangered Species, 911 NE 11th Avenue, Portland, Oregon 97232-4181 (503/231-6131, facsimile 503/231-6243).

Currently, no habitat conservation plans (HCPs) exist that include Thlaspi californicum as a covered species. However, we believe that, in most instances, the benefits of excluding HCPs from critical habitat designations will outweigh the benefits of including them. In the event that future HCPs covering T. californicum are developed within the boundaries of the designated critical habitat, we will work with applicants to ensure that the HCPs provide for protection and management of habitat areas essential for the conservation of this species. This will be accomplished by either directing development and habitat modification to nonessential areas, or appropriately modifying activities within essential habitat areas so that such activities will not adversely modify the primary constituent elements. The HCP development process would provide an opportunity for more intensive data collection and analysis regarding the use of particular habitat areas by T. californicum . The process would also enable 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 will also provide technical assistance and work closely with applicants throughout the development of any future HCPs to identify lands essential for the long-term conservation of T. californicum and appropriate management for those lands. The take minimization and mitigation measures provided under such HCPs would be expected to protect the essential habitat lands proposed as critical habitat in this rule.

Section 4(b)(2) of the Act requires us to designate critical habitat on the basis of the best scientific and commercial information available, and to consider the economic and other relevant impacts of designating a particular area as critical habitat. We may exclude areas from critical habitat upon a determination that the benefits of such exclusions outweigh the benefits of specifying such areas as critical habitat. We cannot exclude such areas from critical habitat when such exclusion will result in the extinction of the species concerned. We will conduct an analysis of the economic impacts of designating these areas as critical habitat prior to a final determination. When completed, we will announce the availability of the draft economic analysis with a notice in the Federal Register , and we will open a 30-day public comment period on the draft economic analysis and proposed rule at that time.

We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, we solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule. We 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 benefit of designation will outweigh any threats to the species due to designation;

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

(3) Land use designations 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;

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

(6) Whether our approach to critical habitat designation could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concern and comments.

If you wish to comment on this proposed rule, you may submit your comments and materials by any one of several methods (see ADDRESSES ). Please submit electronic mail comments as an ASCII file and avoid the use of special characters and any form of encryption. Please also include “Attn: 1018-AG92” and your name and return address in your electronic message. Please note that the electronic address FW1_kneelandpennycress@.fws.gov will be closed out at the termination of the public comment period. If you do not receive a confirmation from the system that we have received your electronic message, contact us directly by calling our Arcata Fish and Wildlife Office at phone number 707/822-7201.

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. To the extent consistent with applicable law, we will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.

In accordance with our policy published on July 1, 1994 (59 FR 34270), we will solicit the expert opinions of 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 listing and designation of critical habitat.

We will consider all comments and information received during the public comment period on this proposed rule during preparation of a final rulemaking. Accordingly, the final determination 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 within 45 days of the date of publication of this proposal within the Federal Register . 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 before the first hearing is held.

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

Send a copy of any comments that concern how we could make this rule easier to understand to the Field Supervisor, Arcata Fish and Wildlife Office (see ADDRESSES ).

In accordance with Executive Order 12866, this document is a significant rule and was reviewed by the Office of Management and Budget (OMB) in accordance with the four criteria discussed below. We are preparing a draft analysis of this proposed action, which will be available for public comment, to determine the economic consequences of designating the specific areas as critical habitat. The availability of the draft economic analysis will be announced in the Federal Register so that it is available for public review and comments.

(a) While we will prepare an economic analysis to assist us in considering whether areas would be excluded pursuant to section 4 of the Act, we do not believe this rule will have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal communities. Therefore, we do not believe a cost benefit and economic analysis pursuant to EO 12866 is required.

Thlaspi californicum was listed as endangered on February 9, 2000. As needed, we will conduct, formal and informal section 7 consultations with other Federal agencies to ensure that their actions will not jeopardize the continued existence of Thlaspi californicum. 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. Section 7 of the Act requires Federal agencies to ensure that they do not jeopardize the continued existence of the species. Based on our experience with the species and its needs, we believe that any Federal action or authorized action that could potentially cause an adverse modification of the proposed critical habitat would currently be considered as jeopardy to the species under the Act in areas occupied by the species.

Accordingly, we do not expect the designation of occupied areas as critical habitat to 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. The designation of areas as critical habitat where section 7 consultations would not have occurred but for the critical habitat designation, may have impacts on what actions may or may not be conducted by Federal agencies or non-Federal persons who receive Federal authorization or funding that are not attributable to the species listing. We will evaluate any impact through our economic analysis (under section 4 of the Act: see Economic Analysis section of this rule). Non-federal persons who do not have a Federal sponsorship of their actions are not restricted by the designation of critical habitat.

(b) This rule is not expected to 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 Thlaspi californicum since its listing in 2000. The prohibition against adverse modification of critical habitat is expected to impose few, if any, additional restrictions to those that currently exist in the proposed critical habitat on currently occupied lands. We will evaluate any impact of designating areas where section 7 consultations would not have occurred but for the critical habitat designation through our economic analysis. 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 agencies' actions.

(c) This proposed rule, if made final, is not expected to significantly 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 on any Federal entitlement, grant, or loan programs. This conclusion is based on the small acreage and number of entities affected by this proposal. We will evaluate any impact of designating areas where section 7 consultations would not have occurred but for the critical habitat designation through our economic analysis.

(d) OMB has determined that this rule may raise novel legal or policy issues and, as a result, this rule has undergone OMB review.

Following introductions, the Council staff will present the 2001 Whiting Stock Assessment and Fishery Evaluation (SAFE) Report for small mesh multispecies, including Whiting Monitoring Committee recommendations concerning future management actions. The Scallop Committee will request approval of additional management alternatives to be included in draft Amendment 10 to the Atlantic Sea Scallop Fishery Management Plan (FMP) and analyzed in the Draft Supplemental Environmental Impact Statement (DSEIS). Primary issues include alternatives to manage limited access fishing effort and general category scallop vessels, minimize habitat and bycatch impacts, and address monitoring and data collection issues.

The afternoon session will include consideration and approval of a schedule of management actions for 2002. The Spiny Dogfish Committee will then seek approval of New England Council recommendations for spiny dogfish specifications for the 2002-2003 fishing year. Measures may include a Total Allowable Catch (TAC) quota, trip limits, and/or any other measures specified in the Spiny Dogfish FMP.

The meeting will reconvene with reports on recent activities from the Council Chairman and Executive Director, the NMFS Regional Administrator, Northeast Fisheries Science Center and Mid-Atlantic Fishery Management Council liaisons, NOAA General Counsel and representatives of the U.S. Coast Guard, NMFS Enforcement and the Atlantic States Marine Fisheries Commission. A brief period for general comments from the public concerning fisheries management issues will follow. The Multispecies Monitoring Committee (MSMC) will present an update on stock status and management alternatives to meet Northeast Multispecies FMP goals and objectives. During the Groundfish Committee Report, the Council will review scoping comments on the Notice of Intent for Framework Adjustment 36 to the Northeast Multispecies FMP. Measures in this action would be designed to reduce Gulf of Maine cod fishing mortality and discards, extend or change the Western Gulf of Maine closed area, change the area authorized for the northern shrimp fishery, and allow tuna purse seine vessels access to groundfish closed areas. The Council is considering the full range of measures for reducing Gulf of Maine cod fishing mortality, including changes to recreational fishing measures. In addition, because Framework 36 will address the Northeast multispecies annual adjustment process for the 2002 fishing year, the Council will also consider alternatives that may be necessary to meet the goals and objectives of the plan. The Framework 36 discussions will include opportunities for the public to comment. During this discussion, the Council also will review the MSMC-proposed management alternatives for achieving plan goals for possible inclusion in Framework Adjustment 36, as well as identify alternatives for analyses in the accompanying DSEIS.

On the final day of the meeting, the agenda will include red crab and monkfish issues. During the Red Crab report, the Council intends to approve the Red Crab FMP DEIS (including possible identification of a preferred alternative) and public hearing document. Discussion will include review and approval of the Habitat Committee’s recommendations for the designation of red crab Essential Fish Habitat. There will be a presentation of the Monkfish SAFE Report for the 2000-2001 fishing year, including the recommendations of the Monkfish Monitoring Committee concerning management recommendations. The Council also intends to approve initial action on Framework Adjustment 1 to the Monkfish FMP (annual framework adjustment) to implement management measures for the 2002-2003 fishing year (Year 4 of the rebuilding program). Measures under consideration include, but are not limited to, no action, which would allow the Year 4 default measures to take effect; continue the Year 3 measures with adjustments to the gear-based trip limits to account for the recent federal court decision; or adjust Year 3 measures to achieve Year 3 target total allowable catch (TAC) levels. Any outstanding business will be addressed following this report.

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

The New England Council will consider public comments at a minimum of two Council meetings before making recommendations to the National Marine Fisheries Service Regional Administrator on any framework adjustment to a fishery management plan. If the Regional Administrator concurs with the adjustment proposed by the Council, the Regional Administrator may publish the action either as proposed or final regulations in the Federal Register . Documents pertaining to framework adjustments are available for public review 7 days prior to a final vote by the Council.

This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard (see ADDRESSES ) at least 5 days prior to the meeting date.

The Fishery Management Plan for the Atlantic Surfclam and Ocean Quahog Fisheries (FMP) requires NMFS, in consultation with the Mid-Atlantic Fishery Management Council (Council), to specify quotas for surfclams and ocean quahogs on an annual basis from a range that represents the optimum yield (OY) for each fishery. It is the policy of the Council that the levels selected allow sustainable fishing to continue at that level for at least 10 years for surfclams and 30 years for ocean quahogs. While staying within this constraint, the Council must also consider the economic impacts of the quotas. Regulations implementing Amendment 10 to the FMP published on May 19, 1998 (63 FR 27481), added Maine mahogany ocean quahogs to the management unit and provides that a small artisanal fishery for ocean quahogs in the waters north of 43°50′ N. lat. will have an annual quota within a range of 17,000 to 100,000 Maine bushels (bu) (5,991 to 35,240 hectoliters (hL)), with an initial amount of 100,000 Maine bu (35,240 hL). As specified in Amendment 10, the Maine mahogany ocean quahog quota is in addition to the quota specified for the ocean quahog fishery.

The quotas recommended by the Council must be in compliance with overfishing definitions for each species. The overfishing definition for ocean quahogs is based on a control rule, which specifies a biomass target of one half of the virgin biomass, or 2 billion lb (907,200 mt) of meats (200 million bu); a target fishing mortality rate (F) of F 0.1 = 0.02; a minimum biomass threshold of one half of the biomass target, or 1 billion lb (453,600 mt) of meats (100 million bu); and a maximum fishing mortality threshold of F = 0.042. The current biomass of ocean quahog is estimated to be about 3.3 billion lb (1.6 million mt) of meats (330 million bu), or about 80 percent of the virgin biomass, and currently F is estimated to be 0.02. Thus, the stock is not overfished and overfishing is not occurring. NMFS approved the overfishing definition for ocean quahogs in Amendment 12 to the FMP, but disapproved the proposed overfishing definition for surfclams because it was based only on surfclams from the Northern New Jersey area and did not take into account the entire range of the resource. The December 1999 Stock Assessment Review Committee (SARC) proposed an overfishing definition for surfclams, which the Council reviewed and approved at their March 2000 meeting.

The definition approved by the Council for surfclams has a biomass target of one half of the current biomass as a proxy for F MSY (1.4 billion lb, or 640,000 mt, or 82.4 million bu); a minimum biomass threshold of one-half of the proxy for B MSY (700,000 million lb or 320,000 mt); and a maximum fishing mortality rate threshold of F MSY , where the current best proxy for F MSY is the natural mortality rate of M =(0.15). The fishing mortality target is always to be set less than the F threshold and is to be the F associated with the Council-selected quota (approximately 0.03 for 2002). This new overfishing definition for surfclams will be submitted to the Secretary of Commerce for approval in Amendment 13 to the FMP, which the Council is currently developing. If the Secretary were to approve these standards, the surfclam resource will not be overfished and overfishing will not be occurring.

In proposing the 2002 quotas, the Council considered the available stock assessments, data reported by harvesters and processors, and other relevant information concerning exploitable biomass and spawning biomass, fishing mortality rates, stock recruitment, projected effort and catches, and areas closed to fishing. This information was presented in a written report prepared by the Council staff. The proposed quotas for the 2002 Atlantic surfclam, ocean quahog, and Maine mahogany ocean quahog fisheries are shown in the following table. The Council’s recommended quotas for 2002 would maintain the status quo levels of 2001 for both the ocean quahog and Maine mahogany ocean quahog, but the surfclam quota would be increased by 10 percent, from 2.85 million bu to 3.135 million bu (1.518 million hL to 1.669 million hL).

The Council’s recommended 2002 quota of 3.135 million bu (1.669 million hL) for surfclams is the second change in the quota since 1995. The most recent biological assessments (from both the 1997 and 1999 surveys) indicate that the surfclam resource is healthy, composed of many age classes, and can safely sustain increased harvests. Sufficient recruitment is also evident; thus, this level of quota will not harm the long-term sustainability of the resource. The F in 1999 (the last time it was measured at a peer-reviewed SARC) associated with a quota of 2.565 million bu (1.366 million hL) was approximately 0.02 (F= 0.2 ); this slight quota increase proposed for 2002 could increase the F in 2002 to, at most, F= 0.3 , which is consistent with the Council-adopted control rule.

The Council recommended a 2002 quota of 4.5 million bu (2.396 million hL) for ocean quahogs. This quota would be identical to that adopted for the past 3 years, but represents an increase of 13 percent from the 1998 quota level.

The 1999 quota yielded an F (the last time it was measured at a peer-reviewed SARC) of approximately 0.02 (F= 0.02 ), compared to the F threshold of 0.04 (F= 0.04 ) contained in the overfishing definition. The F associated with the 2002 quota is expected to be close to the F in 1999, because a similar proportion of the biomass remains unexploited compared to 1999.

The Atlantic surfclam and ocean quahog quotas are specified in standard bushels of 53.24 L. per bushel, while the Maine mahogany ocean quahog quota is specified in “Maine” bushels of 35.24 L. per bu. Because Maine mahogany ocean quahogs are the same species as ocean quahogs, they are managed under the ocean quahog overfishing definition. When the two quota amounts (ocean quahog and Maine mahogany quahog) are added, the total allowable harvest is still lower than the level that would result in overfishing for the entire stock.

The Council proposed a 2002 ocean quahog quota based on the analysis of abundance for that species found in the 31st Northeast Regional Stock Assessment Workshop (SAW 31), which concluded in August 2000. Although SAW 31 showed that the ocean quahog quota could have been increased beyond the 2001 quota level, the Council did not recommend any change for 2002 because of four major factors: (1) The 2000 quota was not constraining to the industry; (2) nearly all industry members supported the 4.5 million bu (2.396 million hL) harvest level; (3) repeated concern was expressed by industry over the continued lack of apparent ocean quahog recruitment south of Georges Bank; and (4) unless prices or technology change significantly in the near future, it is unlikely that the ocean quahog fishery extractions in the past are sustainable, because those extractions have been dependent on rich unexploited beds.

The Council recommended that the Maine mahogany ocean quahog quota remain unchanged from the 2001 quota level at 100,000 Maine bu (35,240 hL) for 2002. No additional information on the impacts of the mahogany quahog quota is available at this time that would allow a more in-depth analysis of the stock and, therefore, allow the quota to be increased beyond the current maximum level of 100,000 Maine bu (35,240 hL). A scientific survey and assessment of the extent of the resource is currently under way by the State of Maine and will be fully analyzed in the development of Amendment 13 to the FMP, which is expected to be submitted by the Council in 2002. From the information currently available, maintaining the quota at its current level for another year will not seriously constrain the fishery or endanger the resource.

This action is authorized by 50 CFR part 648 and has been determined to be not significant for purposes of Executive Order 12866.

This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132; therefore, preparation of a Federalism assessment is not necessary.

The Council prepared an IRFA in section 9.0 of the RIR that describes the economic impacts this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, the objectives and the legal basis for this action are contained at the beginning of the SUPPLEMENTARY INFORMATION section. This action does not duplicate, overlap, or conflict with any other Federal rules. A summary of the IRFA follows:

In 2000, a total of 48 vessels reported harvesting surfclams or ocean quahogs from Federal waters under an Individual Transferable Quota (ITQ) system. Average 2000 gross income from surfclam harvests was $702,317 per vessel, and $470,854 per vessel from ocean quahog harvests. In the small artisanal fishery for ocean quahogs in Maine, 34 vessels reported harvests in the clam logbooks, with an average value of $97,223 per vessel. All of these vessels fall within the definition of a small entity. The Council recommends no change in the 2002 quotas for ocean quahogs or Maine mahogany ocean quahogs from their 2001 quotas, and a 10-percent increase in the surfclam quota. Since 2000 harvest levels of 2.561 and 3.161 million bu (1.364 million hL to 1.683 million hL) for surfclams and ocean quahogs, respectively, were below the 2002 proposed quotas, and the Council assumes no changes in fishing effort or yield-to-effort will take place in 2001, the Council believes that the proposed 2002 quotas will yield a surplus quota available to vessels participating in these fisheries. In the case of a surplus quota, vessels would not be constrained from harvesting additional product, thus, allowing them to increase their revenues.

The Council analyzed four ocean quahog quota alternatives in addition to the preferred 4.500-million bu (2.396-million hL) option, including 4.000, 4.250, 4.750, and 6.000 million bu (2.129, 2.263, 2.529, and 3.195 million hL). The minimum allowable quota specified in the current OY range is 4.000 million bu (2.129 million hL) of ocean quahogs. Adoption of a 4.000 million bu (2.129 million hL) quota would represent a 12-percent decrease from the current 4.500 million bu (2.396 million hL) quota and, assuming the entire quota is harvested, a 27-percent increase in harvest from the 2000 harvest level of 3.161 million bu (1.683 million hL). This alternative would take the most conservative approach to managing the fishery that is currently available to the Council. Adopting the maximum allowable quota of 6.000 million bu (3.195 million hL) for ocean quahogs would represent a 33-percent increase in allowable harvest and a 90-percent increase in landings from 2000, assuming that all of the quota is harvested. However, the industry does not have a market available to absorb such a massive increase in landings and may not have the vessel capacity necessary to harvest a quota this large (two of the most productive ocean quahog vessels sank in January 1999 and have not been replaced). Since all alternatives, including the preferred, would yield increases relative to the actual 2000 landings, increased revenues, would be likely to occur.

The Council identified four surfclam quota alternatives in addition to the preferred alternative of 3.135 million bu (1.669 million hL), including 1.850, 2.850, 3.000, and 3.400 million bu (0.985, 1.517, 1.597, and 1.810 million hL). The minimum allowable quota specified in the current OY range is 1.850 million bu (0.985 million hL) of surfclams. Adoption of a 1.81 million bu (0.985 million hL) quota would represent a 35-percent decrease from the current 2.850-million bu (1.517-million hL) quota, and a 28-percent decrease from the 2000 harvest level of 2.561 million bu (1.364 million hL). A reduction in quota of this magnitude would have a substantially negative impact on overall exvessel revenues. Adoption of the 2.850 million bu (1.517 million hL) quota would most likely have a limited impact on small entities, since it is identical to the 2001 quota. Adopting the maximum allowable quota of 3.400 million bu (1.810 million hL) for surfclams would allow for a 19-percent increase in harvest. The Council considered a 5-percent increase in quota from the 2001 level to 3.000 million bu (1.597 million hL), but industry representatives asked for, and stated that they preferred, a 10-percent increase. The preferred alternative allows for the 10-percent increase of 2.850 million bu (1.517 million hL) to 3.135 million bu (1.669 million hL). The Council determined that the only alternative that would significantly negatively impact revenues to vessels is the 1.850 million bu (0.985 million hL) alternative for surfclams. Both the status quo quota alternative and the 5-percent increase could be constraining on industry. At best, the 5-percent increase would probably increase revenues by a small amount. The resource can support the 10-percent increase in landings and the industry believes it can harvest and process this additional product.

The quota for Maine mahogany ocean quahogs is specified at a maximum 100,000 Maine bu (35,240 hL). The FMP specifies that upward adjustments to the quota would require a scientific survey and stock assessment of the Maine mahogany ocean quahog resource. However, no survey or assessment has been conducted. The Council considered two alternative quotas for the Maine mahogany fishery, in addition to the preferred alternative of 100,000 Maine bu (35,240 hL), including 50,000 Maine bu and 72,466 bu (17,620 and 25,537 hL). Any quota the Council would have recommended below the 1999 landing level of 93,938 Maine bu (33,104 hL) would most likely have resulted in a decrease in revenues to individual vessels.

Nine to 12 processors currently participate in the surfclam and ocean quahog fisheries. However, five firms are responsible for the vast majority of purchases in the ex-vessel market and sale of processed clam products in wholesale markets. Impacts to surfclams and ocean quahog processors would most likely mirror the impacts of the various quota alternatives to vessels, as discussed above. Revenues earned by processors would be derived from the wholesale market for clam products and, since a large number of substitute products (i.e., other food products) are available, the demand for processed clam products is likely to be price-dependent.

In 2001, there were 99 surfclam allocation holders, while 63 firms or individuals held an ocean quahog allocation. If the recommended quotas are accepted, i.e., no change from 2001 quotas on ocean quahogs or Maine mahogany ocean quahogs, and an increase of 10-percent for surfclams, it is likely that impacts to allocation holders or buyers will be minimal. Theoretically, increases in the quota would most likely benefit those who purchase quota (through lower prices (values)) and negatively impact sellers of quota because of reduction in value. Decreases in the quota would most likely have an opposite effect.

This proposed rule would not impose any new reporting, recordkeeping, or other compliance requirements. Therefore, the costs of compliance would remain unchanged.

The RIR/IRFA is available from the Council (see ADDRESSES ).