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 2001-NM-78-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. 2001-NM-78-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

On April 9, 1998, the FAA issued AD 98-08-24, amendment 39-10473 (63 FR 19180, April 17, 1998), applicable to certain McDonnell Douglas Model DC-9-10, -20, -30, -40, and -50 series airplanes, and Model C-9 (military) airplanes, to require a one-time visual inspection to determine the modification status of the corners of the forward lower cargo doorjamb; low-frequency eddy current (LFEC) inspections to detect cracks of the fuselage skin and doubler at all corners of the forward lower cargo doorjamb; various follow-on repetitive inspections; and modification, if necessary. That action was prompted by reports of fatigue cracks found in the fuselage skin and doubler at the corners of the forward lower cargo doorjamb. The requirements of that AD are intended to detect and correct such fatigue cracking, which could result in rapid decompression of the fuselage and consequent reduced structural integrity of the airplane.

Since the issuance of that AD, the manufacturer has advised the FAA of an error in the procedures for inspecting the modified or repaired corners of the forward lower cargo doorjamb. The service bulletin identified in AD 98-08-24 refers to the DC-9 Structural Repair Manual (SRM), which specified that those inspections be done using LFEC methods. The FAA and the manufacturer have determined that LFEC inspections would be inadequate to determine the type and extent of the cracking for the modified or repaired corners of the forward lower cargo doorjamb. The manufacturer instead recommends that those inspections be done using high-frequency eddy current (HFEC) methods for those modified or repaired corners. The SRM has been revised to specify use of the new inspection method.

The FAA has reviewed and approved McDonnell Service Bulletin DC9-53-277, Revision 01, dated June 16, 1999. The original version of this service bulletin, dated September 30, 1996, was cited in AD 98-08-24 as the appropriate source of service information for accomplishment of certain required actions. The revised service bulletin refers to the revised SRM, which specifies HFEC rather than LFEC inspections of the modified or repaired corners. The remaining actions are unchanged. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.

Accomplishment of the actions required by this AD constitutes terminating action for inspections of Principal Structural Element 53.09.001 (reference McDonnell Douglas Model DC-9 SID) required by AD 96-13-03, amendment 39-9671 (61 FR 31009, June 19, 1996).

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 supersede AD 98-08-24 to continue to require a one-time inspection to determine the modification status of all corners of the forward lower cargo doorjamb, various follow-on repetitive inspections, and modification if necessary; and to require HFEC (rather than the currently required LFEC) inspections to detect cracks of the fuselage skin and doubler at the modified or repaired corners of the forward lower cargo doorjamb. The actions would be required to be accomplished in accordance with the service bulletin described previously, except as discussed in the following section.

Although the service bulletin specifies that the manufacturer may be contacted for disposition of certain repair conditions, this proposal would require the repair of those conditions to be accomplished in accordance with a method approved by the FAA.

Paragraph (d) of AD 98-08-24 has been revised in this proposed AD to provide an additional compliance time variable for operators unable to determine the date of the modification, if accomplished.

The FAA has clarified the inspection requirement contained in the proposed AD. Whereas AD 98-08-24 requires a “visual inspection,” the FAA has revised this proposed AD to clarify that its intent is to require a “general visual inspection.” Additionally, new Note 4 has been added to this proposed AD to define that inspection.

The FAA has revised the applicability of the existing AD to identify model designations as published in the most recent type certificate data sheet for the affected models.

There are approximately 899 airplanes of the affected design in the worldwide fleet. The FAA estimates that 622 airplanes of U.S. registry would be affected by this proposed AD.

The inspection that is currently required by AD 98-08-24, and retained in this proposed AD, takes approximately 1 work hour per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the currently required actions is estimated to be $60 per airplane.

Should an operator be required to accomplish an eddy current inspection, it would take approximately 1 work hour per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of an eddy current inspection proposed by this AD is estimated to be $60 per airplane.

Should an operator be required to accomplish the modification, it would take approximately 14 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Required parts would cost approximately $936 or $2,807 per airplane, depending on the service kit purchased. Based on these figures, the cost impact of the modification required by this AD is estimated to be $1,776 or $3,647 per airplane.

No change to the parts cost or work hour estimate is anticipated as a result of the new actions included in this proposed AD.

The cost impact figures discussed above are 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:

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 2001-NM-389-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. 2001-NM-389-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The FAA has received a report of uncommanded deployment of cabin oxygen masks on a McDonnell Douglas MD-88 airplane. The deployment occurred in flight and was limited to the aft lavatories, aft flight attendant seat, and passenger seat masks aft of the aft galley. No cockpit indication lights of the oxygen system/mask deployment illuminated to indicate the deployment. Subsequent inspection revealed burnt wires in the area of the disconnect panel above the aft left lavatory. The cause of the burnt wires was determined to be from chafing against the disconnect panel structure. The chafing condition was attributed to slack in the wires from the module blocks due to contact between a wire bundle and the disconnect panel. Such chafing damage could result in electrical arcing and consequent smoke and fire in the cabin.

The wire installations in the area of the disconnect panel above the aft left lavatory on Model MD-80 airplanes are similar to those installed on Model MD-90 airplanes. Therefore, these models may be subject to the same unsafe condition.

We have reviewed and approved Boeing Alert Service Bulletin MD90-24A074, Revision 01, including Appendix A, dated August 8, 2001. The service bulletin describes procedures for a one-time inspection to find wire chafing damage and to determine adequate clearance between the disconnect panel structure and the wires above the aft left lavatory; and corrective actions, if necessary. The corrective actions include securing the wires using tie-wraps to obtain 0.50-inch minimum clearance, if clearance is inadequate; repairing or replacing any damaged wires; and doing a continuity check and test of applicable systems for wires that are repaired or replaced. 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, except as discussed below.

The service bulletin refers only to an “inspection” to find wire chafing and acceptable clearance between the disconnect panel structure and the wires, but this proposed AD would require a “general visual inspection.” Note 2 has been included in this proposed AD to define this type of inspection.

Although the service bulletin requests that operators report inspection findings of chafing or no chafing to the manufacturer after inspecting the wires, this proposed AD does not contain such a reporting requirement.

There are approximately 113 airplanes of the affected design in the worldwide fleet. The FAA estimates that 21 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 1 work hour per airplane to accomplish the proposed inspection, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the inspection proposed by this AD on U.S. operators is estimated to be $1,260, or $60 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:

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 2002-NM-64-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. 2002-NM-64-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The FAA has received a report of an uncommanded stabilizer trim on a Boeing Model 777 series airplane that occurred on the ground. The leading edge of the horizontal stabilizer moved fully up, which would have resulted in a pitch command in the nose-down direction during flight. Investigation revealed that two seals on one stabilizer trim control module (STCM) of the trim system of the horizontal stabilizer had failed. An error in manufacturing the metal adjacent to the seals in the STCM caused the failures.

The STCM has a dual-valve design that requires simultaneous arm and control valve motion to create a stabilizer trim command. A single STCM seal failure can cause a single uncommanded valve motion, resulting in inoperative stabilizer trim in the airplane nose-up direction. Two STCM seal failures can cause two valves to move, resulting in an uncommanded stabilizer trim in the airplane nose-down direction. The stabilizer trim system includes a protective monitoring-and-shutdown function to detect and stop uncommanded stabilizer motion using a motor-operated shutoff valve to block hydraulic pressure supplied to the STCM. An uncommanded stabilizer trim due to simultaneous failure of two STCM seals and the automatic shutdown function of the stabilizer trim system could result in loss of pitch control and consequent loss of control of the airplane.

The FAA has reviewed and approved Boeing Service Bulletin 777-27A0047, Revision 2, dated October 11, 2001, which describes procedures for examination of both STCMs of the trim system of the horizontal stabilizer to identify affected serial numbers (S/N) and follow-on corrective actions, if necessary.

If any affected serial number is found, Part 1 of the Work Instructions describes procedures for repetitive functional tests to verify proper functioning of the stabilizer trim system of the horizontal stabilizer, including the automatic shutdown function of the stabilizer trim system. Part 1 also includes expanded instructions on how to conduct the test and interpret the results, as follows:

• If the functional test results indicate a test condition of “FAILED” or if the stabilizer does not move, the service bulletin specifies correcting the fault or cause of the condition, and repeating the functional test.

• Before returning the airplane to service, the functional test must have passed per Part 1.A.1. of the service bulletin, or the stabilizer trim system must be serviceable per Part 1.A.5.a. of the service bulletin.

Part 2 of the Work Instructions describes procedures for identification and removal of STCMs having S/N 6 through 549 inclusive, and replacement with new or reworked STCMs. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.

Boeing Service Bulletin 777-27A0047, Revision 2, references MOOG Aircraft Group Service Bulletin 160300-27-124, Revision 1, dated August 24, 2000, as the source of service information for changing and marking (reworking) the removed STCM units for installation on an airplane. The service bulletin also references certain chapters of the Boeing 777 Airplane Maintenance Manual for procedures for certain corrective actions.

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 Boeing service bulletin described previously, except as discussed below.

The effectivity of Boeing Service Bulletin 777-27A0047 identifies only Model 777-200 and 300 series airplanes having line numbers 2 through 266 and 273, excluding line numbers 256, 258, and 260 through 263 inclusive, as being subject to the service bulletin, but we have determined that the proposed AD applies to all Model 777 series airplanes. The subject STCMs are line-replaceable units and may have been installed on other airplanes not included in the effectivity in the service bulletin. This proposed AD requires that all Model 777 series airplanes be inspected for STCMs having the serial numbers specified in the service bulletin.

Although the service bulletin does not specify a records review, this proposed AD requires, as the initial action, doing a one-time general visual inspection or reviewing the airplane maintenance records to determine if STCMs having the serial numbers specified in Part 2 of the Work Instructions of the service bulletin are installed (Part 2 identifies the serial numbers of the STCMs that are to be removed) within 30 days after the effective date of this AD. The functional test and follow-on corrective actions specified in the service bulletin, would be required on airplanes with the affected STCMs installed within 150 flight hours after doing the inspection or review. Note 2 of this proposed AD defines a general visual inspection.

There are approximately 404 airplanes of the affected design in the worldwide fleet. The FAA estimates that 131 airplanes of U.S. registry would be affected by this proposed AD.

It would take approximately 1 work hour per airplane to accomplish the proposed inspection/review, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the inspection/review proposed by this AD on U.S. operators is estimated to be $7,860, or $60 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.

Should an operator be required to do the functional test, it would take approximately 1 work hour per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the functional test proposed by this AD on U.S. operators is estimated to be $60 per airplane, per test cycle.

Should an operator be required to do the replacement, it would take approximately 3 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Required parts would be provided by the vendor at no cost to operators. Based on these figures, the cost impact of the replacement proposed by this AD on U.S. operators is estimated to be $180 per airplane.

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

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

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

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 2001-NM-17-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. 2001-NM-17-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The FAA has received reports indicating that, during installation of the modification required by AD 95-13-06 (described below), loose and fractured fasteners of the diagonal brace fitting were found on certain Boeing Model 747 series airplanes powered by GE CF6-80C2 series engines. The cause of the fastener discrepancies was determined to be fatigue. The diagonal brace fitting of the lower spar is located at the lower aft end of the strut and provides the structural attachment of the strut to the diagonal brace. The fasteners attach the fitting to the inboard strut. Cracking of the fitting or surrounding structure due to loose and/or fractured fasteners could lead to the loss of the diagonal brace-to-strut attachment and possible loss of the strut and engine from the airplane.

On June 16, 1995, we issued AD 95-13-06, amendment 39-9286 (60 FR 33338, June 28, 1995). That AD applies to certain Boeing Model 747 series airplanes equipped with General Electric CF6-80C2 series engines or Pratt & Whitney Model PW4000 series engines. That AD requires modification of the nacelle strut and wing structure, inspections and checks to detect discrepancies, and correction of discrepancies.

We have reviewed and approved Boeing Alert Service Bulletin 747-54A2207, dated November 16, 2000, which describes procedures for repetitive inspections and rotational checks (torque checks) to find discrepancies of the fasteners that attach the diagonal brace fittings of the lower spar to the inboard engine struts, and modification of the fasteners if discrepancies (loose, fractured, missing fastener heads) are found. Doing the modification eliminates the need for the repetitive inspections and checks. The modification includes doing a high frequency eddy current inspection (HFEC) of the fastener holes where discrepant fasteners are found and other indicated fastener holes, oversizing the holes, and installing new fasteners. The service bulletin specifies to contact Boeing if cracking is found during the HFEC inspection. 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, except as discussed below.

The service bulletin does not provide a compliance time for accomplishing the modification, but the proposed AD would require that the modification be accomplished within 72 months after the effective date of this AD. In developing an appropriate compliance time for this proposed AD, we considered not only the manufacturer's recommendation, but also the degree of urgency associated with addressing the unsafe condition, the average utilization of the affected fleet, and the time necessary to perform the modification. In light of all of these factors, we find a 72-month compliance time for completing the required modification to be warranted, in that it represents an appropriate interval of time allowable for affected airplanes to continue to operate without compromising safety.

Although the service bulletin specifies that the manufacturer may be contacted for disposition of certain repairs, this proposed AD would require such repairs to be accomplished per a method approved by us, or per data meeting the type certification basis of the airplane approved by a Boeing Company Designated Engineering Representative who we have authorized to make such findings.

There are approximately 237 airplanes of the affected design in the worldwide fleet. We estimate that 14 airplanes of U.S. registry would be affected by this proposed AD.

It would take approximately 5 work hours per airplane to accomplish the proposed inspection and torque check at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this proposed action on U.S. operators is estimated to be $4,200, or $300 per airplane, per inspection/check cycle.

It would take approximately 76 work hours per airplane to accomplish the proposed terminating action at an average labor rate of $60 per work hour. Required parts would cost approximately $4,268 per airplane. Based on these figures, the cost impact of this proposed action on U.S. operators is estimated to be $123,592, or $8,828 per airplane.

The cost impact figures discussed above are 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:

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 2002-NM-15-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. 2002-NM-15-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

On January 18, 2002, the FAA issued AD 2001-17-26 R1, amendment 39-12619 (67 FR 4171, January 29, 2002), applicable to certain Raytheon Model DH.125, HS.125, BH.125, and BAe.125 (U-125 and C-29A) series airplanes; and Model Hawker 800, Hawker 800 (U-125A), Hawker 800XP, and Hawker 1000 airplanes; to require an inspection for cracking or corrosion of the cylinder head lugs of the main landing gear (MLG) actuator and follow-on/corrective actions. The requirements of that AD are intended to prevent separation of the cylinder head lugs, which could prevent the MLG from extending and result in a partial gear-up landing.

Since the issuance of that AD, the FAA has determined that the applicability should be expanded to be consistent with the effectivity specified in Raytheon Service Bulletin 32-3391, dated August 2000 (which is referenced as the appropriate source of service information for that AD), and revised to identify model designations as published in the most recent type certificate data sheet for the affected models. In addition, we have determined that the compliance time for the inspection requirements in that AD needs to be clarified in paragraph (b) of the final rule. Therefore, we have determined that further rulemaking is necessary, and this proposed AD follows from that determination.

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 supersede AD 2001-17-26 R1 to continue to require an inspection for cracking or corrosion of the cylinder head lugs of the MLG actuator, and follow-on/corrective actions. The proposed AD also would expand and clarify the applicability of the existing AD per the referenced service bulletin and type certificate data sheet, and, for certain airplanes, clarify the compliance time for the inspection requirements in paragraph (b)(3) of this AD. This proposed AD is intended to prevent separation of the cylinder head lugs, which could prevent the MLG from extending and result in a partial gear-up landing.

This proposed AD differs from AD 2001-17-26 R1 in that the applicability includes all of the airplane models cited in the effectivity of the referenced service bulletin. This change was necessary to include Model BAe.125 Series 800B airplanes, because that model was not specified in the applicability of AD 2001-17-26 R1. The change also clarifies model designations per the most recent type certificate data sheet.

We have further clarified the applicability of this proposed AD to specify airplane models “as listed in Raytheon Service Bulletin 32-3391, dated August 2000.” This change is necessary because the effectivity of the service bulletin also specifies that accomplishment of the service bulletin is not necessary for airplanes installed with an MLG actuator having part numbers “AIR48502-5 and AIR48503-5, or DOIW00839-1 and DOIW00839-2.”

We also have clarified the compliance time for the inspection requirements in paragraphs (b), (b)(3)(i), and (b)(3)(ii) of this AD for Model BAe.125 series 800B airplanes, because an actuator cylinder head could have been in service for more than 7 years and have 4,001 or more total landings as of the effective date of this AD.

There are approximately 1,000 airplanes of the affected design in the worldwide fleet. We estimate that 650 airplanes of U.S. registry would be affected by this proposed AD.

The actions that are currently required by AD 2001-17-26 R1, and retained in this proposed AD, take approximately 20 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the currently required actions on U.S. operators is estimated to be $780,000, or $1,200 per airplane.

This proposed AD does not add any new actions or requirements, and only revises the applicability of the AD by adding an airplane model, clarifying the model designations, and clarifying the compliance time for the inspection requirements for certain airplanes. Therefore, the estimated cost impact for this proposed AD is unchanged from the existing AD.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the current or proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. However, for affected airplanes within the period under the warranty agreement, the FAA has been advised that the manufacturer has committed previously to its customers that it will bear the cost of replacement parts. The FAA also has been advised that manufacturer warranty remedies are available for labor costs associated with accomplishing the actions required by this proposed AD. Therefore, the future economic cost impact of this AD may be less than the cost impact figure indicated above. 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:

Section 251 of the Foster Care Independence Act of 1999 (Pub. L. No. 106-169), enacted on December 14, 1999, added a new title VIII to the Act (Special Benefits for Certain World War II Veterans). Title VIII authorizes SSA to pay special veterans benefits (SVB) to certain WWII veterans who reside outside the United States. Establishing SVB entitlement is a two-step process: first, you need to show that you meet certain qualifying requirements; once we determine that you qualify for SVB, you will be entitled to SVB payments after you begin residing outside the United States.

Section 802 of the Act provides that, in order to be entitled to SVB, you must first establish that you are a “qualified individual.” You qualify for SVB if you file an application for SVB and are:

• Age 65 on or before December 14, 1999 (the date the title VIII program was enacted);

• A WWII veteran;

• Eligible for SSI for both December 1999 (the month of enactment) and the month you file your application for SVB; and

• Receiving total monthly benefit income from other sources that is less than 75 percent of the Federal benefit rate (FBR) under SSI (title XVI of the Act).

However, even if you meet all the above requirements, section 804 of the Act specifies certain conditions that will still prevent you from qualifying for SVB or, if you have already qualified for SVB, will prevent us from paying you benefits. Specifically, the following events will prevent you from qualifying for or receiving SVB:

• Removal (including deportation) from the United States under section 237(a) or 212(a)(6)(A) of the Immigration and Nationality Act.

• Flight to avoid prosecution, or custody or confinement after conviction, for a crime or an attempt to commit a crime that is a felony under the laws of the United States or the jurisdiction of the United States from which you fled or, in the case of the State of New Jersey, is a high misdemeanor.

• Violation of a condition of probation or parole imposed under Federal or State law.

• Residence in a country to which payments are withheld by the Treasury Department under 31 U.S.C. 3329.

As explained above, section 802 of the Act specifies that you must be a WWII veteran to qualify for SVB. Section 812(1) of the Act defines a WWII veteran as a person who served during WWII in:

• The active military, naval, or air service of the United States during the period beginning on September 16, 1940 and ending on July 24, 1947; or

• The organized military forces of the Government of the Commonwealth of the Philippines, while the forces were in the service of the U.S. Armed Services under the military order of the President dated July 26, 1941, including organized guerrilla forces under commanders appointed by the Commander in Chief, Southwest Pacific Area, or other competent authority in the U.S. Army. This service must have been rendered at any time during the period beginning July 26, 1941 and ending on December 30, 1946.

In addition to meeting either of these requirements, you must have been discharged or released from this service under conditions other than dishonorable after serving at least 90 days or, if your service was less than 90 days, because of a disability or injury incurred or aggravated in the line of active duty.

Sections 806 and 810 of the Act authorize us to establish rules about the kinds of information you must give us to show that you qualify for SVB and that you are entitled to receive benefits. Section 806 also specifies that we cannot pay you SVB based only on your statements about whether you qualify for benefits. Instead, you must give us documents or other evidence that we will verify with independent sources.

Section 805 of the Act specifies that your monthly SVB payment is equal to 75 percent of the Federal benefit rate (FBR) under title XVI of the Act, reduced by the amount of any other benefit income you receive for that month. As used in title VIII, “other benefit income” means any recurring payments you receive such as an annuity, pension, retirement, or disability benefit, but only if you received a similar payment from the same (or a related) source during the 12-month period before the month you file an application for SVB.

As indicated above, section 802 of the Act requires you to file an application in order to establish that you qualify for SVB. Section 806 of the Act authorizes SSA to prescribe the requirements for filing such an application. In order to maintain consistency throughout the benefit programs we administer, we have attempted, where possible, to use the same requirements we use for filing applications under the titles II and XVI programs. These rules were established in order to ensure that individuals have every reasonable opportunity to file a claim for benefits at the earliest possible time without loss of benefits, and we believe those same considerations apply to claims for title VIII benefits.

Proposed part 408 would initially consist of 5 subparts. (As indicated above, we will propose additional subparts in a subsequent NPRM.) Following is a list of each proposed subpart that includes a brief description of the contents of each proposed section in the subpart.

• Section 408.101 introduces the title VIII program and contains a list of each subpart in part 408, and gives a brief description of the topics covered in those subparts.

• Section 408.105 briefly explains the purpose of the title VIII program and that the program is administered by SSA.

• Section 408.110 defines certain terms that are used throughout part 408.

• Section 408.120 explains how we calculate time periods in which you must take a required action under the SVB program when they end on a day, any part of which is a nonworkday for Federal employees. This is the same as the rule we use under both the title II and title XVI programs.

As explained above, you must meet certain requirements to qualify for SVB ( i.e. , you must be age 65 on or before December 14, 1999, a WWII veteran, SSI eligible for December 1999 and the month in which you file for SVB, not receiving other benefit income that is 75% or more of the SSI FBR, and you must file an application for SVB). In addition, even if you meet these requirements, certain other conditions will prevent you from qualifying for SVB or, if you are already qualified, will prevent us from making SVB payments to you. Subpart B discusses these qualifying and entitlement requirements. Specifically:

• Section 408.201 describes what subpart B is about and gives a general explanation of how you qualify for and establish entitlement to SVB payments.

• Section 408.202 gives a list of the specific requirements you must meet to qualify for SVB.

• Section 408.204 describes the conditions that will prevent you from qualifying for SVB even if you meet the requirements in § 408.202.

• Section 408.206 explains that when you apply for SVB, we will first determine if you qualify for benefits. If you do not qualify, we will deny your claim. If you do qualify, we will send you a written notice of qualification that explains you have 4 calendar months after the date of the notice in which to begin residing outside the U.S. or we will deny your claim. If you begin residing outside the U.S. within that 4-month period, your SVB payments will begin with the first full month in which you resided outside the U.S. on the first day of the month.

• Section 408.208 explains that, if you begin residing outside the U.S. within 4 calendar months after the date of the written notice of SVB qualification, we will send you a notice of SVB entitlement, including the date your entitlement begins, the amount of your monthly SVB payment, and the amount of any reduction in your payment because you are receiving other benefit income.

• Section 408.210 explains that if you do not begin residing outside the U.S. within 4 calendar months after the date of the written notice of SVB qualification, we will deny your SVB claim.

• Section 408.212 explains what happens if you are residing outside the U.S. at the time you file for SVB. If you meet all the requirements for qualification and none of the SVB disqualifying events applies to you, we will ask you for evidence of your residence outside the U.S. After your foreign residence is established, we will send you a notice of SVB entitlement, including the date your entitlement begins, the amount of your monthly SVB payment, and the amount of any reduction in your payment because you are receiving other benefit income.

• Section 408.214 explains that, in order to qualify for SVB, you must have been age 65 on or before December 14, 1999.

• Section 408.216 explains the service and discharge requirements you must meet to be considered to be a WWII veteran.

• Section 408.218 explains what we mean by eligible for SSI. Under this section, anyone whose SSI eligibility has not been terminated or whose SSI benefits are not subject to a penalty under § 416.1340 of our SSI regulations will be considered to be eligible for SSI, whether or not the person is actually receiving SSI payments.

• Section 408.220 explains what we mean by “other benefit income” and includes examples of payments we consider to be “other benefit income.” It also explains that your other benefit income will only affect your entitlement to SVB if you received a similar payment from the same or a related source at any time during the 12-month period before you file for SVB.

• Section 408.222 explains how your other benefit income affects SVB qualification and the amount of your SVB payment. If you are receiving other benefit payments when you file for SVB, we will deny your claim if these payments equal or exceed 75 percent of the FBR payable to individual SSI recipients with no income; otherwise we will reduce your monthly SVB payment by the amount of the other benefit income you receive in that month.

• Section 408.224 explains how we determine the monthly payment of your other benefit income if the payments are not made on a monthly basis.

• Section 408.226 explains that, once you begin receiving SVB, we will reduce your SVB payments if you begin receiving additional other benefit income, but only if you received similar benefits from the same or a related source during the 12-month period before you applied for SVB.

• Section 408.228 explains when we will consider you to be residing outside the U.S. It also explains that, for SVB purposes, you can be a resident of only one country at a time.

• Section 408.230 explains when you must establish residence outside the U.S. Under the rulemaking authority provided by the law, we propose to establish a 4-month time limit within which you need to establish residence outside the U.S. Generally, the 4-month period would begin with the month after the month in which the notice that you qualify for SVB is dated. However, this section also explains that we will extend the 4-month period if you are in the U.S. to appeal a decision on your title VIII claim or on a title II and/or a title XVI claim that affects your SVB qualification. We believe this 4-month time period takes into account the fact that you generally need to be residing in the U.S. in order to be SSI eligible (and therefore are residing in the U.S. when you apply for SVB) but still gives you sufficient time in which to make arrangements to leave the U.S. and to begin residing outside the U.S.

• Section 408.232 explains that you lose your foreign resident status and we will stop paying you SVB if you enter the U.S. and stay here for more than 1 full calendar month. We will not resume your SVB payments until you establish that you are again residing outside the U.S. In recognition of the fact that many individuals receiving SVB benefits may wish to return to the U.S. for short periods (e.g., to visit friends or relatives), we propose to permit them to continue receiving SVB while in the U.S. provided they do not stay in the U.S. for more than 1 full calendar month.

• Section 408.234 explains that you may continue to receive SVB payments even if you are in the U.S. for more than 1 full calendar month if you are prevented from returning to your home abroad by circumstances beyond your control or you are in the U.S. to appeal an SSA decision on a claim filed under title II, VIII, or XVI of the Act.

This subpart contains our rules on filing applications under the SVB program. Specifically:

• Section 408.301 explains what subpart C is about.

• Section 408.305 explains that you must file an application to receive SVB.

• Section 408.310 explains what makes an application a claim for SVB.

• Section 408.315 explains that you must file your own application for SVB unless you are mentally incompetent or physically unable to sign your own application. In that case, certain other individuals may sign the application on your behalf.

• Section 408.320 explains the kinds of evidence an individual must give us to show that he or she has authority to sign an application on your behalf.

• Section 408.325 explains when we consider you to have filed your application.

• Section 408.330 explains how long your application for SVB will remain in effect.

• Section 408.340 explains when we will use the date of a written statement as your application filing date.

• Section 408.345 explains the circumstances under which we will establish your filing date based on an oral inquiry about qualifying for SVB.

• Section 408.351 explains the circumstances under which we will establish your filing date if we give you misinformation about qualifying for SVB.

• Section 408.355 explains what happens if you request to withdraw your application for SVB.

• Section 408.360 explains how you can cancel your request to withdraw your application for SVB.

Proposed subpart D sets forth the rules we would use to evaluate evidence under the title VIII program. Specifically:

• Section 408.401 explains that, in addition to your statements, we may need documentary evidence to confirm that you meet all the SVB qualification requirements and ensure that we pay you the correct amount of benefits.

• Section 408.402 explains when you need to give us evidence.

• Section 408.403 explains where you should give us the evidence we need to process your SVB claim.

• Section 408.404 explains if you fail to give us evidence we need in connection with your claim by a specified date, we may decide you do not qualify for SVB or, if you are already receiving SVB, we may stop or reduce your payments until we receive the necessary evidence. This section also explains when we will give you more time to give us the evidence.

• Section 408.405 explains that when you need to give us evidence to establish that you qualify for SVB or may continue receiving SVB payments, the evidence must be an original document or record or a certified copy of the original document or record. In the case of certified copies, this section also includes a list of the people who may certify the document or record to be a true and exact copy of the original. The section also explains that when you give us an original record, we will photocopy it and return the original record to you.

• Section 408.406 explains how we evaluate the evidence you give us.

• Section 408.410 explains that you must submit evidence of your age to qualify for SVB unless we have already established your age in connection with a claim for benefits under title II or title XVI of the Act.

• Section 408.412 explains what kinds of documents you need to give us to show that you were born on or before December 15, 1934.

• Section 408.413 explains how we evaluate the evidence of age you give us.

• Section 408.420 explains that your evidence of WWII service must show your name, your branch of service, the dates of your service, your military service number, the character of your discharge and, if you were in the organized military forces (including organized guerrilla forces) of the Government of the Commonwealth of the Philippines, that your service is considered to have been in the service of the U.S. Armed Forces. This section also explains the kind of evidence you can give us to show you are a WWII veteran.

• Section 408.425 explains that we will use our data records to determine your SSI eligibility.

• Section 408.430 explains that we need evidence of your other benefit income if the income is less than 75 percent of the FBR.

• Section 408.432 explains what is evidence of your other benefit income.

• Section 408.435 explains the evidence you need to give us to show that you are residing outside the U.S.

• Section 408.437 explains the evidence you need to give us to show that you had good cause for remaining in the U.S. for more than one full month after you begin receiving SVB. It includes a description of the kinds of evidence you can give to show both that you made a good faith effort to return to your home abroad and the circumstances that prevented you from doing so.

Proposed subpart E explains how we determine the amount of and pay SVB. Specifically:

• Section 408.501 explains what subpart E is about.

• Section 408.505 explains that the maximum SVB payment is equal to 75 percent of the SSI FBR for an individual with no income. It explains that whenever there is a cost-of-living allowance (COLA) increase in the FBR, we will increase your SVB to reflect the COLA increase. It also explains that we will reduce the maximum SVB payable by the amount of your other benefit income.

• Section 408.510 explains that, when you are receiving other benefit income, we do not round the amount of your SVB payment. This section also explains that the minimum SVB payable is $1.00.

• Section 408.515 explains that we make SVB payments on the first day of the month for which they are due. We also explain that when the first day of the month is a Saturday, Sunday, or Federal legal holiday, we will make your payment on the first preceding day that is not a Saturday, Sunday or Federal legal holiday.

Executive Order (E.O.) 12866, as amended by E.O. 13258, requires each agency to write all rules in plain language. In addition to your substantive comments on these proposed rules, we invite your comments on how to make these proposed rules easier to understand.

For example:

• Have we organized the material to suit your needs?

• Are the requirements in the rules clearly stated?

• Do the rules contain technical language or jargon that is unclear?

• Would a different format (grouping and order of sections, use of headings, paragraphing) make the rules easier to understand?

• Would more (but shorter) sections be better?

• Could we improve clarity by adding tables, lists, or diagrams?

• What else could we do to make the rules easier to understand?

We have consulted with the Office of Management and Budget (OMB) and determined that these proposed rules do not meet the criteria for a significant regulatory action under Executive Order 12866, as amended by Executive Order 13258. Thus, they were not subject to OMB review.

We certify that these proposed rules will not have a significant impact on a substantial number of small entities because they affect only individuals filing for benefits under title VIII of the Act. Therefore, a regulatory flexibility analysis, as provided for in the Regulatory Flexibility Act, as amended, is not required.

These proposed rules contain reporting requirements as shown in the table below. Where the public reporting burden is accounted for in Information Collection Requests for the various forms that the public uses to submit the information to SSA, a 1-hour placeholder burden is being assigned to the specific reporting requirement(s) contained in these rules.

Reporting requirements to provide evidence and documentation are generally discussed in §§ 408.201, 408.206(a) and (b), 408.401, 408.402, 408.403, and 408.405. We have not included these sections in the table below because the burdens for the specific reporting requirements for evidence and documentation are accounted for in other sections listed in the table.

An Information Collection Request has been submitted to OMB for clearance. We are soliciting comments on the burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility and clarity; and on ways to minimize the burden on respondents, including the use of automated collection techniques or other forms of information technology. Comments should be submitted to the Social Security Administration at the following address: Social Security Administration, Attn: SSA Reports Clearance Officer, Rm. 1A-20 Operations Building, 6401 Security Boulevard, Baltimore, MD 21235-6401.

Comments can be received for between 30 and 60 days after publication of this notice and will be most useful if received by SSA within 30 days of publication.

For the reasons set out in the preamble, we propose to add a new part 408 to Chapter III of Title 20 of the Code of Federal Regulations as follows:

See the information provided in the direct final rule which is located in the rules section of the Federal Register .

On May 1, 1989, the Service received a petition from the Board of Directors of the Utah Nature Study Society requesting the Service to add the spotted frog (then referred to as Rana pretiosa ) to the List of Threatened and Endangered Species and to specifically consider the status of the Wasatch Front, Utah, population. The petitioners stated that “the spotted frog's present range in the lower 48 states is greatly reduced from its historic range,” and that “the current status [of the species] is greatly reduced from historic times.” The petitioners further indicated that the “scientific importance of the spotted frog is that this species lives in many disjunct populations that reflect Pleistocene populations.” Threats identified by the petitioners included loss of habitat (caused by dam and reservoir construction, alteration of drainage patterns, urban and agricultural use of water, and highway and bridge construction); introductions of exotic species; lack of inventories of native wetland animals; insufficient impact analyses conducted prior to development; and inadequate mitigation activities. In addition, the petitioners alluded that Federal and State laws and regulations do not adequately protect wetlands and riparian areas for the spotted frog.

The Service published a notice of a 90-day finding in the Federal Register (54 FR 42529) on October 17, 1989, concluding there was substantial information that the petitioned action may be warranted. Concurrent with publishing the notice, the Service initiated a status review. The period of the status review was prolonged because, throughout its wide range, there was a lack of quantitative information documenting the spotted frog's current distribution and status. Genetics research raised further questions regarding the appropriateness of the then-current taxonomic classification of spotted frog populations.

A notice of the 12-month petition finding was published in the Federal Register (58 FR 27260) on May 7, 1993. In the 12-month petition finding, the Service determined that listing the spotted frog as threatened in some portions of its range was warranted but precluded by other higher priority listing actions. Based on geographic and climatic separation and supported by genetic separation (Green 1991), the Service found five Distinct Population Segments (DPS) of spotted frogs throughout its range—(1) the main population (Alaska, British Columbia, Alberta, Wyoming, Montana, north and central Idaho, eastern Washington, and northeastern Oregon), (2) the Great Basin (southern Idaho and Nevada), (3) West Coast (western Washington, Oregon, Idaho, and Nevada), (4) the Wasatch Front, Utah, and (5) the West Desert, Utah. Separation of the West Desert and Wasatch Front DPSs in Utah is supported by geographic isolation in addition to ecological and demographic distinctiveness (Bos and Sites 2001).

Four of the five DPSs (all but the main population) were found to be warranted but precluded by higher listing priorities; both Utah populations were designated as candidates for listing. In Utah, the Wasatch Front population was assigned a listing priority number of three because the magnitude of the threats were high and imminent, while the West Desert population was assigned a listing priority of nine because of moderate to low threats.

On November 15, 1994, the Service published a Candidate Notice of Review in the Federal Register for the four candidate DPSs (59 FR 58982). The listing priority for the West Desert DPS was increased from nine to six. In the Service's September 19, 1997, Candidate Notice of Review, the scientific and common name of the Wasatch Front, West Desert, and Great Basin DPSs were changed to Rana luteiventris and Columbia spotted frog respectively, based on new genetics information (Green et al. 1997).

On November 28, 1997, the Service announced the availability of a Draft Conservation Agreement for the Wasatch Front and West Desert populations (Utah) of the Columbia spotted frog ( Rana luteiventris ) (62 FR 63375). The Service received a request to extend the comment period, and on December 24, 1997, announced that the comment period on the Draft Conservation Agreement had been extended until January 16, 1998 (62 FR 67398). The Service subsequently signed the Conservation Agreement on February 13, 1998, in cooperation with the Utah Division of Wildlife Resources (UDWR), Bureau of Land Management, Bureau of Reclamation, Utah Reclamation Mitigation and Conservation Commission, Central Utah Water Conservancy District, and the Confederated Tribes of the Goshute Federation.

The goal of this interagency Conservation Agreement is to ensure the long-term conservation of the Columbia spotted frog within its historical range in Utah. The Conservation Agreement established a mechanism for the recovery of the spotted frog through interagency cooperation, coordination of conservation efforts, and development of recovery priorities. Due to numerous activities and studies in addition to and pursuant with the Conservation Agreement, we determined that the status of the Columbia spotted frog in Utah had improved and no longer warranted listing under the Act on April 2, 1998 (63 FR 16218). With this finding, both DPSs of Columbia spotted frogs in Utah were removed as candidates for listing on October 25, 1999 (64 FR 57533).

On June 8, 1999, a complaint was filed by the Biodiversity Legal Foundation and Peter Hovingh challenging the not warranted finding as violating the Act and the Administrative Procedure Act. The complaint alleged that the not warranted finding was inconsistent with the 8 years of prior determinations by the Service; that the Wasatch Front population of the Columbia spotted frog deserved listing under the Act; that the Wasatch Front population of the Columbia spotted frog had declined during the course of the 8-year administrative process; that the Conservation Agreement contained future and voluntary actions that had yet to be implemented and had not proven successful at protecting the Wasatch Front population of the Columbia spotted frog; and that all measures identified by the Service as having previously been implemented had either failed, had been rejected by the Service as inadequate, or were adopted to mitigate specific projects that had already destroyed Columbia spotted frogs and their wetland and aquatic habitat.

On August 6, 2001, the plaintiffs and the Government reached a settlement regarding this complaint. The settlement stipulated that we remand for reconsideration the 1998 “not warranted” finding and start a new status review and 12-month finding on the Wasatch Front population of the Columbia spotted frog to be completed by July 31, 2002. The Service subsequently published a notice of intent to conduct the 12-month finding on September 10, 2001 (66 FR 47034). The settlement also stated that we would not vacate our previous determination in the interim. Candidate status of this species would not be restored unless and until we determine in the revised 12-month finding that the species is warranted for listing, or warranted but precluded from listing by higher priority listing actions.

Following this settlement, we initiated a review to evaluate the status of the Columbia spotted frog on the Wasatch Front. Comments were received, evaluated, and incorporated where appropriate into this status review. Information included published and unpublished reports, manuscripts, books and data, memoranda, letters, phone communications, email correspondence, and information gathered at meetings. In addition, persons who were species experts on the Columbia spotted frog were provided opportunity to comment on the data used in this report to ensure it was the most accurate and updated information available and that it was interpreted accurately. This status review is available upon request from the Utah Field Office (see ADDRESSES above).

The Columbia spotted frog belongs to the family of true frogs, the Ranidae. Color and pattern descriptions of individuals from Utah include brownish-black dorsal coloration with little to no spotting pattern (Colburn, U.S. Fish and Wildlife Service, pers. comm. 1992). Pigmentation on their abdomens varies from yellow to red (Turner 1957). Columbia spotted frogs along the Wasatch Front generally possess a salmon color ventrally, while West Desert and Sanpete County, Utah, populations generally have a yellow to yellow-orange color ventrally.

The spotted frog is closely associated with water (Dumas 1966, Nussbaum et al. 1983). Habitat includes the marshy edges of ponds, lakes, slow-moving cool water streams and springs (Licht 1974; Nussbaum et al. 1983; Morris and Tanner 1969; Hovingh 1987).

The overall distribution of the Columbia spotted frog is continuous throughout extreme southeastern Alaska, southwestern Yukon, northern British Columbia, and western Alberta; and south through Washington (east of the Cascades), eastern Oregon, Idaho, and western Montana. Its southern extent includes disjunct populations in central and northeastern Nevada, southwestern Idaho, western and north-central Wyoming, and northern Utah (Stebbins 1985; Green et al. 1996, 1997, Tanner 1931, Linsdale 1940, Banta 1965, Turner and Dumas 1972, Hovingh 1993, Ross et al. 1993, 1994). These disjunct populations are highly fragmented, occurring on isolated mountains and in arid-land springs.

Systematic and taxonomic relationships of spotted frogs occurring in Utah to other spotted frog populations have been described in several manners. Two subspecies of Rana pretiosa were described originally (Thompson 1913, Wright and Wright 1949). These two subspecies, R. p. pretiosa and R. p. luteiventris , were described based on pigmentation characteristics of frogs. As additional specimens were examined, variability of characteristics within and between populations was described (Morris and Tanner 1969). Green et al. (1996) examined allozyme and morphometric variation in R. pretiosa and suggested that at least two species were represented, referred to as species A (southwestern Washington and Oregon Cascades) and species B (remainder of range). However, morphometrically the two species were “almost indistinguishable” and the authors could not fully delineate the dividing line between the ranges of species A and species B. Based on biochemical and morphological data, Green et al. (1997) concluded that there were two groups at the species level—Oregon spotted frog ( Rana pretiosa ) and Columbia spotted frog ( Rana luteiventris ). They determined that all spotted frog populations occurring within Utah should be taxonomically described as Rana luteiventris . On September 19, 1997, the Service updated the common and scientific names of the Utah populations to the Columbia spotted frog, Rana luteiventris .

Further analyses of taxonomic relationships among range-wide spotted frog populations were performed by Bos and Sites (2001). This study revealed four genetically distinct lineages. Two of these lineages are represented in Utah—(1) the Deep Creek lineage (Deep Creek-Ibapah population in the West Desert DPS), and (2) the Bonneville lineage (all other populations in Utah, including the Wasatch Front and the remainder of the West Desert DPSs). The Wasatch Front DPS appears to have originated from the West Desert populations in relatively recent evolutionary time, during the recession of Lake Bonneville (Bos and Sites 2001, Toline and Seitz 1999). Therefore, genetic differences between these populations have not yet been established. However, separation of the West Desert and Wasatch Front DPSs is supported by ecological and demographic distinctiveness due to geographic isolation and habitat differences, including disparate biological, chemical, and thermal characteristics of occupied springs and wetlands (Hovingh 1993, U.S. Fish and Wildlife Service 1993). In addition, due to the dependence of spotted frogs on aquatic habitats (Bos and Sites 2001) and population isolation (Toline and Seitz 1999), there is likely no gene flow existing between the Wasatch Front and West Desert DPSs.

The disjunct populations in Utah represent the southern extent of the species range (Stebbins 1985). Post-glacial climatic shifts allowed spotted frog populations to naturally distribute across drainage areas of the Bonneville Basin of Utah. The Bonneville Basin encompasses the area that was covered by ancient Lake Bonneville and which, today, lies within the Great Basin province. The Great Basin province is distinguished geologically by parallel north-south mountain ranges separated by broad, alluvial desert basins (Christiansen 1951) and valleys. The steep, gravelly slopes of these ranges are prominently marked by benches and other shore features of Lake Bonneville. Springs commonly occur at the base of the mountains (Bick 1966) and in the valley floors. Several aquatic species have maintained an existence as relict populations in these springs, including the Columbia spotted frog, least chub, and several species of mollusks. However, these species are rare and in some areas the populations are declining. Rapid deterioration of aquatic environments, primarily from agricultural practices, has caused other unique Bonneville Basin species, such as Rhinichthys osculus relictus (Hubbs and Miller), a subspecies of dace, to become extinct (Hubbs et al. 1974).

The Wasatch Front population occurs in isolated springs or riparian wetlands in Juab, Sanpete, Summit, Utah, Tooele, and Wasatch Counties. Columbia spotted frogs have been extirpated from the Salt Lake Valley and tributaries to the Jordan River and Great Salt Lake due to habitat loss from urban development. Currently, there are seven localized populations of spotted frog that comprise the Wasatch Front population or DPS. The largest known concentration is currently in the Heber Valley; the remaining six locations are Jordanelle/Francis, Springville Hatchery, Holladay Springs, Mona Springs Complex/Burraston Ponds, Fairview, and Vernon. For purposes of this finding, each distinct area within the Wasatch Front DPS that supports reproducing and self-sustaining frogs is referred to as a population.

Spotted frogs are aquatic specialists and more dependent on permanent aquatic habitats than other ranid species (Dumas 1966, Perkins and Lentsch 1998a). The majority of sightings and captures of this species have occurred while the frogs were submersed in water. Range-wide, spotted frogs use a variety of habitat types including cold water ponds, streams, lakes, and springs adjacent to mixed coniferous and subalpine forest, grassland, and brush land (Morris and Tanner 1969, Stebbins 1985). On the Wasatch Front, they are usually found in emergent wetlands associated with riparian or isolated spring-fed habitat with cool and organic substrates (Dumas 1966, Morris and Tanner 1969, Cuellar 1994). Habitat usually consists of a small spring, pond, or slough with a variety of herbaceous emergent, floating, and submergent vegetation. Spring vegetation most commonly associated with the spotted frog on the Wasatch Front includes: bullrush ( Scirpus sp.), sedges ( Carex spp.), cattails ( Typha sp.), duckweed ( lemnaceae ), rushes ( Juncus spp.), watercress ( Nasturtium officinale ), grasses ( Graminae ), and algae (Ross et al. 1994). Morris and Tanner (1969) suggest that deep silt or muck bottoms are required for hibernation and torpor.

Spotted frogs emerge from hibernation in the spring and tend to use different habitats depending on their needs. For example, in Yellowstone National Park sexually immature individuals tended to inhabit aquatic habitats away from breeding adults (Turner 1958). Breeding adults may use areas in the absence of other age-classes, and move to sites near younger frogs as the water begins receding from the breeding area (Turner 1958). Turner (1960) suggested that spotted frogs have small home ranges. In Yellowstone National Park frogs were recaptured at or near the same location used for breeding. This hypothesis is supported by studies of spotted frogs in the Heber Valley where most individuals were recaptured in the site of their initial capture (Ammon and Wilson 2001).

Recent studies have evaluated spotted frog locations and movements outside of the breeding season. Ongoing research in the Heber Valley of Utah indicates that spotted frogs travel short distances between breeding and post-breeding habitats, and many breeding sites serve as year-round habitat (Ammon and Wilson 2001). Bull and Hayes (2001) noted post-breeding dispersal distances of 15 to 560 meters (49 to 1,837 feet) in spotted frogs in northeastern Oregon. Dispersal patterns were related to pond size, water temperatures, and proximity to other sources of permanent water. Dispersal corridors are typically limited to aquatic or semi-aquatic habitats such as streams, intermittent drainages, and seeps (Ross and Peterson 1998). Intensive mark-recapture and radiotelemetry studies are needed to determine actual movement distances and patterns in this and other Utah populations.

Wasatch Front populations begin breeding in early-March with the spring thaw. However, populations at higher elevations may delay breeding until mid-March, and continue through late-April (UDWR data on file). Elevation differences in spotted frog breeding seasons have been similarly reported in British Columbia (Licht 1975) and Yellowstone National Park (Turner 1958), and are attributed to temperature differences. Spotted frogs are known to use temporary bodies of water for breeding in more mesic parts of their range (Turner 1960, Licht 1971), but in Utah breeding sites are predominantly associated with a spring or some other permanent water source (Morris and Tanner 1969, Hovingh 1993, Ross et al. 1993, Ross et al. 1994).

Egg deposition is stimulated by a single pair of frogs followed by other spotted frogs depositing eggs in the same area. It has been reported that they will deposit eggs in the same area annually (Morris and Tanner 1969, Nussbaum et al. 1983). Individual females may oviposit more than one clutch of eggs annually (Morris and Tanner 1969); however, this has not been confirmed in Utah populations. Sex ratios have not been quantified in Utah. For estimates of effective population size (N e ), UDWR used estimates of 1:1 sex ratios as derived from egg mass monitoring information during 1991-1993 surveys (Ross et al. 1993, 1994).

Egg masses tend to be deposited in open, shallow (<20 centimeters/7.9 inches) areas within 2 meters (6.6 feet) of the shoreline with water temperatures ranging between 11°C and 20°C (51°F and 68°F) (Ross et al. 1993, 1994). Egg masses are weakly adhesive and form an irregular mass or globular cluster approximately 7.5 to 20 centimeters (3 to 8 inches) in diameter. They may become weakly attached to vegetation ( Chara spp.) for a short period of time. Eventually the mass floats to the surface, exposing the top layer of eggs. Wind and water currents often move masses around and they may begin to break up. Eventually the egg masses may become separated and covered with debris. Number of eggs per egg mass are quite variable, ranging from 147 to 1,160 eggs (Toone 1991). Individual eggs are typically larger than those of other ranids. Hatching rates vary directly with water temperature (Toone 1991).

Studies in Montana, Oregon, and British Columbia have documented that insects are the primary prey for the spotted frog (Miller 1978, Whitaker et al. 1982, Licht 1986). These studies were performed in portions of the species range outside of Utah where spotted frogs inhabit different habitat types and may exhibit different life history characteristics. However, absent site-specific information, we can assume that the feeding habits of spotted frogs in Utah are similar to those documented in other areas.

Section 4 of the Act and implementing regulations (50 CFR part 424) set forth the procedures for adding species to the Federal lists. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act. An endangered species is one that is in danger of extinction throughout all or a significant portion of its range. A threatened species is one which is likely to become and endangered species within the foreseeable future throughout all or a significant portion of its range. The five factors used in determining whether a species warrants listing as either threatened or endangered and their application to the Wasatch Front Columbia spotted frog ( Rana luteiventris ) are as follows:

Urban growth with its associated water development and consequent losses of wetland and spring habitats were the primary causes for historical population losses and habitat fragmentation for the spotted frog on the Wasatch Front. Continued urbanization has been identified as a potential cause of concern for the spotted frog based on growth projections. The Wasatch Front human population is projected to increase to almost 3 million people by 2020 and 5 million by 2050 (Lee 2001). Counties with extant populations of spotted frogs are experiencing high human population growth rates (Table 1).

Approximately 14,400 hectares (35,500 acres) of wetland habitats are at direct risk from urban expansion by 2050 (Lee 2001, Lee and Melcher 2001). Development is projected to occur near most extant spotted frog populations by 2050. Urban development is not projected to occur in the vicinity of the Jordanelle/Francis population; however, recreational and rural residential development is increasing in the area and will likely continue. However, in and of themselves, general predictions about the degree of urbanization and other land uses in 2050 are too distant in time and speculative in nature to support a finding that the spotted frog is likely to be in danger of extinction in the foreseeable future. Though three of the populations once faced more certain and immediate threats to their habitat, as discussed below, those threats have been sufficiently addressed by conservation actions currently in place.

Recent conservation and management efforts (Table 2) have successfully focused on addressing foreseeable habitat loss threats to an extent that alleviates the threat of urbanization at the extant populations. Water development was identified as negatively impacting spotted frog habitat in the Heber Valley. However, this threat was removed with the purchase of 125 cubic feet per second of riverine base flows and 650 acre-feet of water for restored habitats under the Provo River Restoration Project. A potential threat to the Mona/Burraston population of spotted frogs is groundwater withdrawals in the Juab Valley. Thiros (1999) estimated, using 1992 water withdrawal rates and assuming no additional water contributions to the system, the water table could be lowered by 1.5 m (5 ft) and groundwater discharge rates reduced by 38 percent by 2022. However, model predictions indicate that the groundwater level available to support wetland vegetation will not significantly decrease in the Mona/Burraston area (Thiros 1999) and habitat for this population of spotted frogs is not likely to be affected. Groundwater levels are currently sufficient to sustain the Mona/Burraston spotted frog population. Habitat acquisitions or easements have been completed to a large degree at three of the extant populations (Mona/Burraston, Heber Valley, Springville Hatchery) to protect the populations in perpetuity. For example, 85 percent of the Provo River corridor in the Heber Valley (including most occupied spotted frog habitat) has been purchased through conservation efforts and is protected in perpetuity through legally binding agreements. Because of this protection, urbanization is no longer a direct threat to these populations. Although the threats to the habitat of other populations are distant and speculative at this time, as discussed below in “Recommendations for the Future,” similar protection efforts are planned for those populations.

Due in large part to habitat protection and conservation activities put in place during the past 5 years, the long-term viability of the Columbia spotted frog population on the Wasatch Front is stable to increasing. Recent survey efforts have discovered new breeding sites over larger areas, and documented larger population sizes than were previously known. The extant populations are more extensive, more connected and, therefore, more viable than previously thought.

Although habitat acquisitions that are completed are sufficient to address the current threats to the Wasatch Front population of spotted frog, efforts continue for acquiring additional habitats. Habitat acquisitions, to date, were targeted in those populations where threats were the most imminent. Potential threats are minimal at the remaining unprotected populations and do not currently compromise the long-term persistence of the spotted frog.

Given the habitat protection already in place, habitat loss is not likely to put the frog in danger of extinction in the foreseeable future. This is so even if none of the additional planned habitat protection is completed. To the extent that the additional protection is completed, it should further improve the status of spotted frog.

The collection of spotted frogs is currently prohibited (State of Utah Rule R657-3). However, past collections of this species may have contributed to the extirpation of some populations on the Wasatch Front. In particular, spotted frogs were collected from the Provo, Springdell, and Vivian Park areas for universities (U.S. Fish and Wildlife Service 1993).

Past and ongoing studies on the life history and habitat requirements of spotted frog in Heber Valley include the use of radio-tags, PIT-tags, and general handling of individual frogs. However, there have been no documented injuries or mortalities due to research related activities ( e.g., handling stress). Although these actions may increase the stress, disease risk, and mortality in this population, these studies are not a significant threat with the operating protocols and procedures to limit potential impacts in place.

Predation by introduced species is a potential threat to the Wasatch Front spotted frog. Most spotted frog habitats in Utah were not historically inhabited by predatory fish species (Sigler and Miller 1963). Today, a variety of introduced fishes, including largemouth bass, rainbow trout, brown trout, brook trout, common carp, mosquitofish, and rainwater killifish have become established in spotted frog habitats on the Wasatch Front. The potential threat appears highest from mosquitofish due to its affinity for the same systems as the spotted frog.

The mosquitofish ( Gambusia affinis ) is a small fish native to the eastern and southeastern United States. This species has been stocked throughout the world as a means of biological control for mosquitos (Sigler and Sigler 1996). Mosquito abatement districts have extensively stocked mosquitofish throughout various aquatic habitats in Utah including wetlands that have current or historic populations of spotted frog. Mosquitofish may be illegally transferred to new habitats by the general public or inadvertently transferred during relocation and reintroduction efforts for other aquatic species. Once introduced, mosquitofish can migrate to adjacent habitats.

Mosquitofish pose a potential threat to spotted frogs because of their known aggressive predation on eggs and young of fishes and amphibians (Grubb 1972, Sigler and Sigler 1987). Mosquitofish are suspected to prey preferentially on amphibian larvae in the presence of other potential prey items (Goodsell and Kats 1999). Spotted frogs may be particularly susceptible to predation by mosquitofish because the frogs emerge from the egg at a very small size of 8-10 millimeters (Morris and Tanner 1969). Studies of the California red-legged frog ( Rana aurora draytonii ) showed that tadpoles of all sizes may be susceptible to mosquitofish predation; they found that mosquitofish were effective predators on tadpoles and could injure or kill tadpoles larger than themselves (Courtenay and Meffe 1989). Spotted frog larvae are unable to swim for a few days after hatching, thus inhibiting their ability to actively avoid predation (Morris and Tanner 1969). Mosquitofish have been observed preying on recently emerged spotted frog tadpoles in populations on the Wasatch Front (Ross et al. 1993; Chris Keleher, CUWCD, pers. comm.).

Raccoons expanded their range into Utah over the past 25 years (Wilson and Balcomb 2001). Raccoon predation has been documented in the Heber Valley (K. Wilson, UDWR, pers. comm.). Although they are amphibian predators, the level of threat to the Wasatch Front spotted frog has not been determined. Bullfrogs, another nonnative predator, also are expanding their range into the Wasatch Front, but have not been documented in any spotted frog populations.

To date, no spotted frog extirpations have been attributed to the presence of nonnative species. Population-level effects ( i.e. , population declines due to predation) by mosquitofish, and other predators, have not been observed on the Wasatch Front (K. Wilson pers. comm.). Available information suggests that spotted frogs are persisting with the presence of nonnative species. Based on numbers of breeding sites and egg masses, extant spotted frog populations are stable to increasing.

Habitat protection and research efforts are continuing to explore control methodologies in the event that nonnative species could ultimately affect spotted frog populations. For example, newly created and restored habitats at Heber Valley and Jordanelle/Francis are being designed to prevent nonnative species invasions. Ongoing conservation actions at all occupied habitats include assessing the impacts of nonnative species on the spotted frog and active removal in some cases. For example, a mechanical removal effort targeting nonnative fish species (primarily mosquitofish) has been underway since 1999. Long-term reduction of mosquitofish was not achieved; however, the documented temporary reduction has important implications toward substantially reducing mosquitofish numbers during critical life-stages of spotted frog (recently emerged tadpoles) and allowing better recruitment of spotted frog to adult life-stages (UDWR, unpubl.data). Given the known level of impact and the above-described conservation actions and protocols, predation by nonnative species does not threaten the persistence of Wasatch Front spotted frog populations.

Chytrid fungus was recently discovered in the Heber Valley population of the spotted frog (Green and Converse 2002, Green and Sohn 2002). Chytrid fungus has been implicated in precipitous declines of amphibian species worldwide (Berger et al. 1998, Longcore et al. 1999, Fellers et al. 2001, NWHC 2001). However, its role in the larger picture of frog population dynamics, and more importantly, its implications for the spotted frog remains undefined. In fact, questions remain regarding the actual infection rate of chytrid in wild populations (Sredl 2000). Some researchers now speculate that the distribution and infection rate of chytrid may reflect more the extent to which biologists have tested for it as much as it reflects the actual distribution of infection (Fellers et al. 2001). Chytrid fungus may naturally occur in many amphibian populations that are only affected when other stressors or environmental factors interact synergistically to increase the virulence of the disease or compromise amphibian immune systems (Carey et al. 1999, Lips 1999). Some frog populations are known to have coexisted with chytrid fungus for decades (USFWS 2002).

Some researchers speculate that the spotted frog may exhibit a resistance (David Green pers. comm. 2002) or adapt (Green and Converse 2002, Green and Sohn 2002) to chytrid infection. Evidence suggests that amphibians infected with chytrid frequently die of dehydration because alteration of the skin inhibits their ability to absorb water. This is especially true in toads which, as opposed to frogs, have a limited area of skin over which to uptake water ( i.e. , the pelvic patch); chytrid die-offs have been seen much less frequently in more aquatic amphibians, such as salamanders. Researchers hypothesize that frogs avoid death by dehydration from chytrid infection because they more freely exchange water though skin over a large portion of their body. In this sense, spotted frogs, because they are highly aquatic in nature, may exhibit a similar “resistance” to chytrid infection (David Green pers. comm. 2002). The infected Heber Valley frogs exhibited a limited infection with chytrid present only on the toes; these individuals appeared to control and adapt to their chytrid infections (Green and Converse 2002, Green and Sohn 2002). The chytrid researchers believe that low-stress conditions in the laboratory may have allowed these spotted frogs to persist long after infection was detected.

The Heber Valley population is the largest and most protected spotted frog population on the Wasatch Front. Habitat protection and conservation efforts have minimized or removed potential threats such as urbanization, predation, and water depletion as stressors from this population. Based on available information, the Heber Valley frogs are less likely to incur large-scale die-offs and are more likely to coexist with chytrid fungus in this low-stress environment. To prevent the potential for further spread of chytrid and other potential disease risks for spotted frogs, the UDWR has implemented strict disease protocols for managers and researchers working with spotted frog and other aquatic species in Utah. Implementation of these procedures is expected to greatly decrease the potential for chytrid to spread to other spotted frog populations. However, all Wasatch Front spotted frog populations will be closely monitored to identify any potential effects of chytrid.

Our current understanding and the relatively low level of known infection of chytrid fungus provides a measure of assurance that the current infection will not put the spotted frog in danger of extinction. To ensure the accuracy of this analysis, efforts will be made to continue to document and control the spread of chytrid fungus.

Regulatory mechanisms did not halt the historical decline of the spotted frog along the Wasatch Front. However, historically, this was largely due to a lack of knowledge regarding the declining status of the spotted frog. Beginning in the mid-1990s, conservation of the spotted frog became a focus of many State and Federal agency efforts, resulting with implementation of the interagency Conservation Agreement and long-term protection for extant spotted frog populations. Importantly, the extant populations are now largely protected from imminent threats and there are ongoing conservation actions aimed at providing long-term protection for unoccupied habitats.

Existing regulatory mechanisms that also may provide protection for spotted frogs and their habitats include—(1) State laws, (2) National Environmental Policy Act, and (3) section 404 of the Clean Water Act. These laws provide additional protection and awareness above and beyond completed and ongoing conservation efforts.

The spotted frog is currently designated as a sensitive species in the State of Utah and is managed under a Conservation Agreement. State of Utah Rule 657-3 regulates the collection, importation, and possession of spotted frogs. The State of Utah Fish Stocking and Transfer Procedures (Policy # W2ADM-1) protects the spotted frog and other sensitive species in Utah by preventing the stocking of nonnative and other potentially harmful species in spotted frog habitats, and outlining protocols to decrease potential transmission of harmful pathogens to spotted frog populations.

The National Environmental Policy Act (NEPA) requires Federal agencies to describe a proposed action, consider alternatives, identify, and disclose potential environmental impacts of each alternative, and involve the public in the decision-making process. Federal agencies are not required to select the alternative having the least significant environmental impacts, but environmental impacts, including those to wetlands and wildlife, are included as part of the public review process and NEPA analysis.

The NEPA can be an effective mechanism in the conservation of the spotted frog where a Federal nexus exists, and agencies are actively involved in spotted frog conservation; i.e. , the Conservation Agreement provides a mechanism for coordination and awareness in this regard. Land use and activities on private lands which includes more than half of the spotted frog populations are not required to comply with NEPA. Many large-scale land activities and water development projects occurred before there was a local awareness about the historically declining status of the spotted frog. However, most Federal agencies with interest or planned actions that might affect spotted frog are currently signatories to the Conservation Agreement. Although their involvement in and of itself does not legally bind the signatories to specific actions under NEPA, since the inception of the agreement these agencies have included spotted frog impacts and conservation as part of NEPA compliance.

Section 404 of the Clean Water Act, administered by the Environmental Protection Agency and the Army Corps of Engineers, is the primary Federal law that potentially provides protection for the spotted frog by regulating fill to wetlands and other aquatic habitats determined to be “jurisdictional,” in part through proximity to surface water connections. The types of wetland impacts addressed by section 404 include:

(1) Actions that impact jurisdictional wetlands defined as “waters of the United States,” 33 U.S.C. § 1363(7);

(2) Discharge of dredged or fill material into waters of the United States; and

(3) Limited activities in upland habitats that may have indirect impacts to adjacent wetlands where fill is permitted.

Recent court decisions ( National Mining Association v. U.S. Army Corps of Engineers 145 F.3d-1399 (D.C. Cir. 1998) (overturning the Tulloch Rule); Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers 531 U.S. 159 (2001) (narrowing the definition of waters of the United States)) have recently reduced the authority of section 404 to protect wetland habitats.

Because of their hydrologic connection to navigable waterways ( e.g. , Provo River, San Pitch River), the Corps still regulates the remaining unprotected remnant spotted frog wetland areas and large areas of unoccupied habitats. The Service maintains an important advisory role to the Corps in the section 404 permitting process. Because of questions concerning the success of spotted frog translocations and spotted frog habitat creation, recent discussions with the Corps have focused on using habitat protection (acquisitions, easements) and restoration techniques for mitigation of spotted frog habitats where necessary.

Resource agencies have been successful at incorporating actions and project conditions that protect and enhance spotted frog habitat. Ongoing efforts include the protection and restoration of spotted frog habitat along the upper Provo River associated with the proposed Victory Ranch development and planned acquisitions of other properties along the Upper Provo River. In addition, ongoing negotiations have been successful in relocating a proposed wastewater treatment plant in the San Pitch Valley near Fairview to a location outside of spotted frog habitat. Furthermore, the applicant is proposing to donate approximately 1.6 hectares (4 acres) of mixed uplands and wetlands for a conservation easement for spotted frogs as a part of the project.

Some areas of unoccupied habitats may be considered nonjurisdictional, i.e. , not subject to regulations under section 404. However, a large portion of remaining unoccupied habitats are not imminently threatened, and some unoccupied suitable habitats, like those at Utah Lake and the Weber River, are protected in perpetuity. Unoccupied habitats are important for future reintroduction and range expansion efforts now that the extant populations are stable. Although there are no documented records of spotted frogs in these areas, Utah Lake and the Weber River fall within its historic range and provide presumably suitable habitat.

In summary, section 404 certainly does not provide complete protection for the spotted frog and its habitats. Historically, regulatory inadequacies likely resulted in the loss of large amounts of occupied spotted frog habitats. Agencies have more recently been successful in working with local landowners and the 404 permitting process to protect and restore spotted frog populations and habitat. The cooperative environment that has resulted from the Conservation Agreement has facilitated efforts to prioritize the spotted frog through the section 404 permitting process. Because of this emphasis, actions that could affect occupied spotted frog habitats are more thoroughly evaluated and efforts are made to avoid or minimize potential impacts. Therefore, potential regulatory inadequacies do not threaten the long-term persistence of the Wasatch Front spotted frog.

Drought may play a role in reducing reproduction of spotted frogs on the Wasatch Front. Decreased rain and snowfall can dry wetlands, dessicate spotted frog egg masses and larvae, and reduce survival rates of subadults and adults (U.S. Fish and Wildlife Service 2000). The combination of increased water demands and natural drought cycles may further reduce the extent and quality of spotted frog habitat and the size of the remaining populations on the Wasatch Front.

Contaminants have not been specifically implicated in the decline of any spotted frog population on the Wasatch Front. However, given the prevalence of agriculture and urban development, the species is likely exposed to a variety of toxins from urban and agricultural sources. While the sensitivity of this species is largely unknown, studies of similar amphibian species show sublethal and lethal effects at the population level.

These factors are not currently known to be significant threats to the long-term persistence of the Wasatch Front spotted frog.

Currently, there are seven populations of spotted frog included in the Wasatch Front DPS, including the newly discovered Vernon population in the Rush Valley near the town of Vernon. Survey efforts since 1999 have greatly expanded the known range of most populations. Most notably, approximately 19 kilometers (12 miles) of occupied spotted frog habitat were discovered in the upper Provo River corridor. All extant populations, with the exception of the very small, isolated Springville Hatchery/T-Bone Bottom population, have either increased (documented colonization of unoccupied newly created or restored sites) or have been found to be of a larger population size (additional occupied sites or greater density of sites found within known population boundaries) than previously thought (Table 3).

The Springville/T-Bone Bottom remains the most vulnerable to extirpation. All other populations (Heber Valley, Jordanelle/Francis, Mona/Burraston, Holladay, and Fairview) have exhibited stable or increasing egg-mass trends based on a review of almost 10 years of egg-mass number data. Populations, however, are cyclic and exhibit continuous, natural high/low fluctuations. Population declines are not unusual; amphibian populations are naturally dynamic, and exhibit sporadic breeding in response to environmental stressors (Duellmann and Trueb 1986).

Population fluctuations (as evidenced by egg mass numbers) have occurred, but have been attributed to natural population dynamics resulting largely from climatic conditions, and not the result of changed landscape conditions. In addition, the Vernon population was discovered in 2002. This discovery and that of an additional 19 kilometers (12 miles) of occupied habitat along the Provo River (Jordanelle/Francis population) implies that additional populations and occupied habitat could yet be discovered.

Based on this recent data, extant populations of the Wasatch Front spotted frog DPS, after decades of decline, have been exhibiting a stable to increasing trend in the most recent time period examined (from 1998 to present; Table 4, Table 5).

The recent change in species status and trends is due in part to our increased knowledge of the species distribution and in part due to the success of already-completed conservation efforts that have minimized or reduced many of the imminent threats to extant populations. Although not all actions necessary to alleviate concerns have been completed, completed conservation actions have addressed and removed or sufficiently reduced threats and the risk of extinction.

The development and implementation of the Conservation Agreement represented an important shift in awareness and effort for conservation of the Wasatch Front spotted frog. Since the initiation of the Conservation Agreement in 1997-1998 and the subsequent conservation actions, monitoring and survey data has shown that populations are larger than previously thought.

Conservation actions have been successful at addressing localized threats to the species at the extant population areas. For example, habitat protection and removal of grazing at Mona Springs has resulted in significant improvements to spotted frog habitat. Habitat acquisitions specific for existing spotted frog populations have occurred ( e.g. , Heber Valley and Mona/Burraston) and significant acreages of unoccupied historic habitat have been purchased and protected ( e.g. , Utah Lake Wetland Preserve) as mitigation for prior impacts to aquatic resources associated with the Central Utah Project. Funds also have been allocated for research into the life history, habitat requirements, and genetics of the spotted frog.

Specific conservation actions and large-scale land acquisitions have occurred that may provide reintroduction areas for spotted frog range expansion efforts. For example, acquisition of the Utah Lake Wetland Preserve and parcels in the Weber River drainage to provide historical, but currently unoccupied habitats.

Of the extant populations, there is a range of ecological size and function that provides a level of diversity. Some populations occur along riparian wetland corridors while others occupy complex spring systems in the valley floor. Although populations are undoubtedly smaller than they were historically, most exhibit stable or increasing trends. The Heber Valley, Jordanelle/Francis, Fairview, and possibly the Mona/Burraston population are large enough to provide some small scale metapopulation function (genetic and demographic buffer) within individual population boundaries. Although not discrete populations, these locations occur over a geographic area of sufficient size and habitat diversity to yield localized genetic interchange. These sub-population dynamics provide local genetic and demographic buffer for the overall population. Other populations like the Springville and Holladay populations, provide small, isolated genetic and demographic refuge and a locally unique ecological function to the Wasatch Front DPS.

There is no specific answer in conservation literature as to the number of populations necessary to allow long-term persistence of a species in a natural evolutionary trajectory. For amphibians, most experts agree metapopulation dynamics provide a critical role in population stability. In the absence of large, connected metapopulations, multiple spotted frog populations of different sizes that represent a range of natural ecological function can provide a reasonable level of assurance for long-term persistence of the species. Newly created or isolated small populations can provide demographic and genetic refuge for other populations. Larger, better connected populations can prevent loss of genetic diversity and prevent detrimental genetic affects that can occur in small populations.

The number of extant populations is one factor affecting the viability of a species. The greater number of populations that occur, the less likely the species will go extinct. This also can be misleading. One large metapopulation fragmented into two smaller populations by human impacts does not translate into a greater chance of persistence. Other factors, such as population size (relative density, abundance, or effective size) and stability (protection of habitat, stable or increasing trend in monitoring data) must be considered in concert with number of populations. When there is a positive or stable trend in population size and numbers and a reduction in threats due to completed and ongoing conservation actions, the species is likely to persist into the future.

The overall level of threats to the long-term persistence of the Wasatch Front spotted frog has decreased in recent years, particularly since 1998. Although most of the human activities that contributed to these threats still occur to some extent throughout the Wasatch Front, there is no longer the same level of impacts on the spotted frog that resulted in past wide-spread habitat destruction and the loss of spotted frog populations. Much of the occupied habitat for the spotted frog is under State or Federal ownership and ongoing management of these lands emphasizes the long-term persistence of the spotted frog. This is not to say that threats have been eliminated. Localized areas continue to be affected by specific problem activities.

However, mechanisms are in place through Federal, State, and local conservation and land-use plans to identify these activities, correct the problems, and protect spotted frog populations. To date, these actions have been successful at reducing threats to extant populations, largely by acquiring important habitats and implementing management actions that improve habitat conditions. Success is evidenced by the stable to improving status of the spotted frog throughout the Wasatch Front in the most recent time period evaluated.

Based on this analysis of the effects of conservation actions already in place, the trajectory of the Wasatch Front spotted frog status continues to be towards more secure populations, reduced threats, and improved habitat conditions. Although some threats continue and may increase, most threats have been or are being addressed through completed or ongoing actions and at this time do not threaten the long-term persistence of the spotted frog. Our analysis of the five factors under section 4(a)(1), individually and collectively, indicates that the spotted frog is not in danger of extinction or likely to become in danger of extinction in the foreseeable future throughout all or a significant portion of the Wasatch Front. Therefore, the Service finds that the Wasatch Front spotted frog is “not warranted” for listing under the Act. If new information indicating that the level of threats have become more severe or the status of the spotted frog or its habitat degenerates in the future, the status of the spotted frog will be reevaluated.

Following historical habitat and population losses, the current populations are stable to improving and most are protected to a large degree from ongoing direct habitat loss, due to already completed conservation actions. Further habitat acquisitions and protections are in progress for the Jordanelle/Francis, Heber Valley, Mona/Burraston, and Fairview populations. Current ventures are focused on acquiring habitat easements along approximately 9.7 kilometers (6 miles) above Jordanelle Dam, including occupied and suitable spotted frog habitats. Easements are currently being pursued with 7 Fairview landowners to protect approximately 162 hectares (400 acres) of occupied spotted frog habitat and migration corridors from potential water and residential development. The remaining 15 percent of the Provo River corridor in the Heber Valley is projected to be purchased and protected by 2004. In the Mona/Burraston population, fee-title purchase or conservation easements are currently being negotiated for 7.9 hectares (19.5 acres) which would allow for protection of all spring and potential spotted frog habitat on this site.

Completion of habitat protection activities which have resulted in a reduction of threats to the extant populations allows conservation efforts to now focus on population expansion into historic, unoccupied habitats. Habitat protection and reintroduction of frogs into suitable, unoccupied habitats will further improve the long-term status of the species along the Wasatch Front. For example, recent habitat acquisitions that also will benefit the spotted frog include 5,544 hectares (13,700 acres) at Utah Lake and 3.2 kilometers (2 miles) along the upper Weber River.

Therefore, the focus of spotted frog conservation efforts can reasonably shift to acquisition of additional occupied and unoccupied, suitable habitats and range expansion efforts, including:

(1) Land protection mechanisms, such as conservation easements and fee-title acquisitions generally provide the most long-term benefits for sensitive species. Voluntary conservation actions on parcels of private land may provide site-specific benefits to the frog. Future conservation should continue to focus on land acquisition and easements that include buffer zones sufficient to minimize direct and indirect impacts from land use as well as protection and maintenance of dispersal or migration corridors. Furthermore, steps should be taken to protect water sources ( i.e. , Juab Valley) where potential threats are identified.

(2) Although there is no specific number of populations necessary to prevent extinction, reintroduced populations provide ecological redundancy in ecological function and genetic and demographic stochasticity. There are several habitats already identified which may provide suitable reintroduction sites. Future conservation should include reestablishment of spotted frog populations, and associated research and land management necessary to maintain new populations in: (1) Areas where populations previously occurred if suitable habitat remains and (2) other suitable habitat within the natural range of the species.

(3) Some Wasatch Front spotted frog populations are notably small in size and vulnerable to risks of detrimental genetic processes (inbreeding, loss of genetic diversity) and demographic uncertainty. Springville Hatchery/T-Bone Bottom population is particularly vulnerable based on its current size and decreasing trend. Actions should be taken to augment or through some other process, increase the size of this population. Furthermore, the current trend should be evaluated to determine if specific land or water use activities are exacerbating the decrease. If specific threats are identified, priority should be placed on reducing these threats such that the population would remain secure into the future.

A complete list of all references cited is available upon request from the Utah Field Office (see ADDRESSES above).

The primary authors of this document are Jessica Gourley and Laura Romin (see ADDRESSES above).

The authority for this action is section 4(f) of the Endangered Species Act, 16 U.S.C. 1533(f).

Listing Under the ESA: Bowhead whales were listed as endangered under the Endangered Species Conservation Act, the predecessor to the ESA, on June 2, 1970 (35 FR 8495; codified at 50 CFR 17.11). The species was then listed as endangered under the ESA in 1973. The principal cause of the decline of bowhead whales, which prompted its listing, was commercial whaling. Factors related to habitat have not been identified as a factor in the decline of the species. Critical habitat has not been designated previously for bowhead whales.

Status and Distribution: Five stocks of bowhead whales occur in Arctic and subarctic waters of the northern hemisphere. The Western Arctic stock of bowhead whales is the largest of these stocks, and occurs in the Bering, Chukchi, and Beaufort Seas. This stock was reduced by commercial whaling in the late 19th and early 20th centuries from an estimated original population size of 10,400-23,000 whales to only several thousand whales by 1910. The best available population estimate for this stock is 8,200 animals and is based upon a survey in 1996. The annual rate of population increase is estimated to be 3.2 percent. A comprehensive survey of the Western Arctic stock of bowhead whales was conducted in the spring of 2001 near Barrow, AK. While the analyses from this survey are not yet completed, preliminary information indicates that their abundance has continued to increase.

Bowhead whales are seasonal residents in the Chukchi and Beaufort Seas. The summer habitat for this stock occurs primarily in Canadian waters off the McKenzie River Delta. They migrate from west to east in spring, and return in fall. Most of the stock is believed to winter in the central and western Bering Sea along the ice front and in irregular areas of open water within the ice called polynyas.

Mating is believed to take place in late winter and spring, perhaps continuing through the spring migration. Each year calving occurs as early as March and as late as August; however, most calving occurs from April through early June during the period of migration.

Bowhead whales feed almost exclusively on zooplankton. Bowhead whales feed in summer in the Canadian Beaufort Sea and the Amundsen Gulf area. Foraging also occurs during the fall migration throughout the Alaskan Beaufort Sea. Feeding locations may vary between years. The majority of whales harvested during fall at Barrow, AK, have food in their stomachs. In September 1998 bowhead whales were observed feeding along the Alaskan coastline near and east of Kaktovik. Most bowhead whales harvested at Kaktovik have food in their stomachs. Studies in the eastern Beaufort Sea indicate that whales also forage over the inner continental shelf. Local knowledge has also shown that the waters around the barrier islands along the Beaufort Sea coast are an important foraging area for bowhead whales. Several sources of man-induced activities impact, or may impact, bowhead whale populations. Bowhead whales are harvested by Alaskan Natives in the Beaufort, Bering, and Chukchi Seas. Annual subsistence take levels averaged 37 whales per year from 1990-2000. In addition to the subsistence harvest, other human activities may contribute to the total mortality. Commercial fishing occurs in the Bering Sea and elsewhere throughout the range of this stock. Interactions between bowhead whales and fishing gear is not thought to be common, however, bowhead whales with ropes caught in their baleen or around their peduncle, and with scarring caused by rope entanglement, have been reported from the animals taken in the subsistence harvests. The North Slope Borough has also documented three confirmed ship strike injuries among 236 bowhead whales taken in the subsistence hunts.

Noise in the marine environment is also increasing with increased industrialization of the Alaskan Arctic, and may effect these whales to an unknown degree. However, there is insufficient evidence at this time to indicate any cumulative or long-term affect on bowhead whales as a result of anthropogenic noises in their Arctic environment. Further NMFS is unaware of any evidence that habitat alteration has had any impact on the recovery of this stock.

The Petition: On February 22, 2000, the Center for Biological Diversity and the Marine Biodiversity Protection Center petitioned NMFS to designate critical habitat for the Western Arctic stock of bowhead whales. The petition requested that the designation include waters of the Chukchi Sea east of 158 degrees W. Long. and the Beaufort Sea between Point Barrow, AK, and the Canadian border, from mean high tide to approximately 170km offshore.

Critical habitat is defined in the ESA (16 U.S.C. 1532(5)) as the specific areas on which are found the physical or biological features (1) essential to the conservation of the species and (2) which may require special management considerations or protection. The 1978 amendments to the ESA established the current criteria for designating critical habitat, which provide, “Critical habitat may be established for those species now listed as threatened or endangered species for which no critical habitat has heretofore been established...” (16 U.S.C. 1532(5)(B)). Therefore, designating critical habitat for species listed prior to 1978 is a discretionary action for NMFS.

Under the Administrative Procedure Act, 5 U.S.C. 553(e) provides, “Each agency shall give an interested person the right to petition for the issuance, amendment or repeal of a rule.” NMFS regulations in 50 CFR 424.14(d) address petitions to designate critical habitat: “Upon receiving a petition to designate critical habitat... the Secretary shall promptly conduct a review in accordance with the Administrative Procedure Act (5 U.S.C. 553) and applicable Departmental regulations and take appropriate action.” NMFS found that the petition contained substantial scientific information indicating that the petitioned action may be warranted and published a notice requesting comments on May 22, 2001 (66 FR 28141).

NMFS received comments from the following organizations during the 90 day comment period: British Petroleum Exploration-Alaska, the Alaska Eskimo Whaling Commission (AEWC), the Inupiat Community of the Arctic Slope, LGL Ltd. Environmental Research Associated, the Alaska Oil and Gas Association, Phillips Petroleum-Alaska, Incorporated, the Minerals Management Service (MMS), and the Center for Biological Diversity. NMFS also received comments on the petition from several individuals. Following is a summary of the comments received and NMFS‘ response.

Comment 1 : Several commenters suggested that the petitioned action is not warranted for the following reasons: The U.S. Beaufort Sea is no more important to the bowhead whale than other areas throughout its range; the Bering/Chukchi stock of bowhead whales is large and increasing in number; loss of habitat is neither contributing to any decline in the bowhead whale population nor limiting their recovery; and existing regulations and management agreements provide adequate protection for this habitat.

Other comments emphasized the growing abundance of the stock, the lack of impact to the whales or their habitat from development, and the significant array of existing laws and regulations which already protect the bowhead whale and its habitat. They also said that any benefits to the bowhead by designation of critical habitat would be outweighed by economic costs.

Response : Few data exist describing the distribution and behavior of bowhead whales outside the Beaufort Sea. It is known that bowhead whales migrate each fall into Bering Sea waters of the U.S. and off the Kamchatka Peninsula. They are presumed to winter in the Bering Sea near the ice edge and within polynyas around St. Lawrence Island. The foraging habitat of bowhead whales appears to be highly dynamic, following changes in species composition of prey and oceanography. Feeding is known to be the principal activity of bowhead whales in the Canadian Beaufort Sea off the McKenzie River Delta, and bowheads continue to feed during their fall migration into the U.S. Beaufort, as well as during the spring migration. Inupiat Eskimos have regularly reported whale feeding behavior in the U.S. Beaufort Sea. The relative importance of foraging habitat within the U.S. Bering Sea to the bowhead whale is difficult to assess. Stable-isotope research has indicated that the Bering Sea provides a substantial portion of the annual food requirements for these animals. Feeding behavior has been observed also among bowhead whales seen off the Siberian coast in late fall.

Breeding locations and periods are not precisely known, but are most likely to occur within the Bering Sea in winter or during spring migrations into the Chukchi and Beaufort Seas. Calving is likely to occur in the months of April, May, and June. This period also coincides with the spring migration.

The loss or degradation of habitat does not appear to be limiting the population growth of bowhead whales at this time. The Beaufort Sea contains large tracts of valuable mineral resources, particularly oil and gas deposits and, as a result, it has been extensively explored for the presence of oil and gas during the past few decades. Both the State of Alaska and the U.S. Department of the Interior are conducting lease sales in the Beaufort Sea. The Northstar Project began production in 2000 and is the first offshore oil production facility in the Beaufort Sea. A second major offshore production facility, Liberty, will be developed in 2003. Oil and gas exploration activities (seismic surveys and drilling) also occur in the Beaufort Sea.

The National Outer Continental Shelf leasing program of the MMS will occur in only two areas during the 5-year planning period 2003-2007, the Gulf of Mexico and Alaska (including the U.S. Beaufort Sea). The occurrence of the bowhead whale and the intensive exploratory and developmental activities of the oil and gas industry that occur in the habitat of the whale has generated significant amounts of attention for many years at every governmental level. Noise in the marine environment is a major habitat issue with respect to offshore development and bowhead whales, and certain noise sources have been shown to cause behavioral changes in individual whales. Current trends in this industry have been to further minimize or eliminate the introduction of any pollutants into the Beaufort Sea. Protective measures such as spill contingency plans and prevention measures, wastewater treatment, shore-based disposal of garbage and drill cuttings, and re-injection of drilling muds and production waters have been implemented to protect the environment.

There has been an increase in the underwater noise levels in the Beaufort Sea as a result of activities such as shipping, ice-breaking, dredging, construction, drilling, and geophysical exploration (seismic). Monitoring studies in the nearshore Beaufort Sea during 1996-1998 demonstrated that nearly all bowhead whales avoid an area within 20 km of an active seismic source and avoidance or deflection by bowhead whales may begin at distances up to 35 km from the noise source. Although NMFS is aware that increases in the levels of noise may potentially have an adverse impact on bowhead whales, NMFS is unaware of any evidence that noise has altered the habitat to the point that it has had any significant impact on the recovery of this population.

Comment 2 : One of the commenters stated that an assessment of economic impacts should be incorporated into our response to the petition.

Response : The ESA requires that, when designating an area as critical habitat, the Secretary of Commerce shall consider the probable economic and other impacts of the designation upon proposed or ongoing activities and may exclude areas from the designation based on the analysis. Because NMFS is not proposing to designate critical habitat, NMFS is not required to conduct an analysis of the economic impacts.

Comment 3 : One of the commenters stated that a National Environmental Policy Act (NEPA) document (e.g. an Environmental Assessment or an Environmental Impact Statement) is necessary to document and assess those impacts not otherwise accounted for in the ESA process of designating critical habitat.

Response : NMFS is not proposing to designate critical habitat at this time; therefore, NMFS will not be preparing a NEPA document.

Comment 4 : Another commenter also stated that the designation of the Beaufort Sea as critical habitat for bowhead whales is not warranted because courts have found that NMFS is not required to designate critical habitat for species listed under the ESA prior to 1978, and that NMFS should avoid unnecessary or duplicative regulations. The commenter noted that this population of bowhead whales is increasing in numbers despite subsistence harvest removals, and there is no evidence that efforts to conserve the population has been affected by a loss or degradation of habitat.

Response : NMFS agrees with the commenter's statement that he number of bowhead whales is increasing. The current population abundance estimate for this population of bowhead whales is estimated at 8,200 individuals and it is increasing at a rate of 3.2 percent per year. There is no indication that degradation of habitat is having any negative impact on the current population. In addition, as provided in response to comment 1, the loss or degradation of habitat does not appear to be limiting the population growth of bowhead whales at this time. NMFS recognizes that the ESA gives the Service discretion in designating critical habitat for species listed prior to the 1978 amendments and has taken into consideration this factor, as well as the others mentioned by the commenter, in making its determination on this petition.

Comment 5 : Several commenters supported the designation of critical habitat for the Western Arctic population of bowhead whales. They noted that bowhead whales may be present in the U.S. Beaufort Sea for up to 4 months during any given year, that calving occurs in these waters during the spring and open water seasons, and that the Beaufort Sea is known to whalers as an important bowhead whale feeding area during both spring and fall migrations. The commenters stated that these features of the area are essential to the conservation of the bowhead whale. They also stated that the Beaufort Sea is becoming increasingly developed, largely for oil and gas extraction and these actions have resulted in documented behavioral effects to bowhead whales. They anticipate future adverse effects due to the continued development and the possibility of oil spills. They further stated that the spring and fall migratory corridors, and waters landward, represent the minimum extent of critical habitat, and recommended that NMFS also consider a similar designation for the spring lead system of the Chukchi Sea. Finally, the commenters stated that NMFS must prepare a recovery plan for the bowhead whale.

Another commenter specifically mentioned the potential for impact from oil spills and nois e on these whales, and the potential adverse consequences to the Inupiat Eskimo culture. They requested that NMFS honor tribal sovereignty by respecting their request to prohibit oil and gas development in the Beaufort Sea.

Response : NMFS is aware that bowheads use portions of the Beaufort Sea for calving, migration, and feeding, recognizes that these areas are important for bowhead whales, and understands that these areas are being used for energy exploration and development. However, NMFS maintains that these areas are protected adequately by existing laws and regulations and do not need additional special management consideration or protection under the ESA.

NMFS reviewed the need for a recovery plan for the bowhead whale, and determined (Memorandum dated June 16, 1998) that a recovery plan was unnecessary due largely to the status of the stock and an agreement between NOAA and the AEWC to manage subsistence harvest of the population. This agreement and the IWC’s Whaling Convention and Aboriginal Harvest Plan cover harvest management, research and enforcement.

NMFS recognizes its responsibilities to consult on a government to government basis with the affected tribal entities of the North Slope in this matter and the importance of local knowledge in our discussions with tribal entities. Much of the applied research associated with oil and gas activities is based on science developed through coordinated study planning, which supplements the scientific method with traditional knowledge and observations of the Inupiat Eskimos. Research plans and reports are often subject to peer review, and Native participation is normally sought when conducting this research.

Comment 6 : One commenter challenged the Petitioner’s statements as to the scope and adequacy of scientific research on the Western Arctic population of bowhead whales. The commenter stated that much is known about these whales, and that research has been directed to those activities with the greatest potential to impact the population. The commenter also stated that any assessment of this issue should consider that these bowhead whales encounter human interaction in other areas of their range; that members of the population spend most of their time outside of the U.S. Beaufort Sea, and that while feeding, sexual activity, and rearing occur in these waters, the U.S. Beaufort Sea is not the part of the bowhead’s range in which these activities are most common.

Response : NMFS agrees that much is now known regarding this population of bowhead whales, particularly in the U.S. Beaufort Sea. NMFS considered the factors identified by the commenter in making its determination on this petition.

Comment 7 : Another commenter stated that the Western Arctic population of bowhead whales has grown for many years, and may, in fact, now be considered recovered. They recommended that NMFS delay its determination on this petition until the final reports from the 2001 whale census and the bowhead whale feeding study are completed. The commenter further stated that a recovered stock obviates any need to designate critical habitat necessary for their recovery and conservation. They note that Incidental Harassment Authorizations (IHAs) issued under the MMPA by NMFS have indicated that offshore oil and gas activities could result in behavioral changes to whales that would result in no more than a negligible impact to the whales. The commenter further stated that the IHA process has proven effective in protecting these whales from human-related activities in the petitioned area. Finally, the commenter stated that NMFS must comply with Executive Order 13211 entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” by preparing a statement of energy effects which describes any actions which may have any adverse effects on energy supply.

Response : NMFS agrees that the Western Arctic population of bowhead whales is increasing. The total visual count of 3,295 bowhead whales during the 2001 survey is encouraging, and provides some additional support that the stock may be recovering. Peer review of the results of the 2001 survey has not been completed; therefore, those results are still preliminary.

The bowhead whale receives protection under both the ESA and the MMPA. Both acts prohibit the unauthorized taking of a bowhead whale. The IHA process is an effective tool in protecting the bowhead whale and, particularly, in mitigating the effects of human-induced noise in the marine environment on the whales. Authorizations of small-take under the MMPA (usually in the form of an IHA) are routinely applied to any oil and gas activities in the Beaufort Sea which may adversely affect bowhead whales or their habitat. The required conditions and monitoring attached to these authorizations focus on anthropogenic noise and are designed to minimize behavioral disruption to bowhead whales.

Because NMFS is not proposing to designate critical habitat, compliance with Executive Order 13211 is not required.

Comment 8 : This comment focused on a recent court decision ( Sierra Club v. U.S. Fish and Wildlife Service , 245 F.3d 434 (5th Cir. 2001)) as further support for the need to designate critical habitat for bowhead whales. The court found that the definition of “destruction or adverse modification” under 50 CFR 402.02 related to consultation under ESA section 7 is invalid. Therefore, the court found that a decision not to designate critical habitat, which relied on the invalid definition, was in error. The commenter stated that the results of the on-going bowhead whale feeding study, while desirable, are not necessary in any determination of critical habitat. They reminded NMFS that oil activities can cause behavioral effects to bowhead whales, and that continued exploration and drilling off the coast of Alaska will exacerbate climate change (i.e., global warming). They noted the failure of industry to demonstrate their capability to recover spilled oil, and pointed to the precautionary principle in guiding any determination on whether to designate critical habitat.

Response : NMFS agrees that the results of the feeding study are not essential to a determination of this issue and recognizes the potential adverse effects of offshore development to bowhead whales. However, NMFS maintains that the combination of existing protections are adequate to protect this stock and its habitat and that the petitioned action is not necessary given existing management measures.

NMFS recognizes the benefits of applying a precautionary approach when faced with uncertainties. However, the information available concerning the biology of the bowhead whale and the effects of oil exploration development on these animals, allow NMFS to develop a reasoned and informed approach to manage and conserve this population. Many factors have the potential to adversely affect these whales; however, this population has shown continued growth even with annual subsistence removals and increased industrial activity within their range. NMFS is satisfied that the management measures currently in place control the potential effects of these activities and others.

Comment 9 : Several other commenters supported the designation of critical habitat only if it can be certain not to impact subsistence hunting practices or harvest quotas.

Response : NMFS appreciates the comment and recognizes that this would be an issue of concern to a number of constituents. However, given the reasons provided earlier in this notice NMFS is not proposing to designate critical habitat. Therefore, concerns about possibly restricting subsistence hunting practices or harvest quotas do not apply.

The biological and natural history information presented in the petition is largely factual and represents an adequate review of existing data. The petition bases its recommendations for critical habitat designation on the following points: The petitioned area contains physical and biological features essential to the conservation of the bowhead whale because these animals migrate, calve, feed, and possibly breed in these waters; and the petitioned area may require special management considerations in view of various threats including oil and gas development, pollution, and vessel activity.

In evaluating the petition, NMFS first considered the requirements of the ESA. In this case, designating critical habitat for bowhead whales is discretionary because the species was listed under the ESA prior to 1978. Consequently, NMFS considered the petition under provisions of the APA (5 U.S.C. 553(e)), which provide, among other things, that agencies must give interested persons the right to petition for the issuance of a rule.

NMFS recognizes that this area is used by bowhead whales. However, these areas, especially the U.S. Beaufort Sea, do not require special management considerations or protection through the designation of critical habitat. This area is currently managed through a combination of the ESA, the Marine Mammal Protection Act and the Fish and Wildlife Coordination Act (FWCA). In addition to managing the incidental taking of bowhead whales, the MMPA includes provisions that can be used to protect the habitat of certain marine mammals, including bowhead whales (e.g., 16 U.S.C. 1382(e)).

Federal activities in the petitioned region generally concern offshore oil and gas exploration and development. Under the ESA and the FWCA, NMFS consults with the Minerals Management Service, the Army Corps of Engineers (Corps), and the Environmental Protection Agency (EPA) regarding the effects of such development on the Outer Continental Shelf (OCS) or other waters through intensive consultation processes. NMFS reviews actions permitted by the Corps and EPA and regularly conditions associated permits through its consultative role under the FWCA.

Formal ESA consultation has occurred for every offshore development project on the OCS. NMFS completed a comprehensive ESA Section 7 consultation in 2000 on the effects of the offshore oil and gas leasing and exploration on the bowhead whale. The resulting biological opinion concluded that those actions were not likely to jeopardize the continued existence of the bowhead whale. Although NMFS does not treat the criteria for evaluating the destruction or adverse modification of designated critical habitat and jeopardy as the same, these ESA consultations in conjunction with protective measures under the MMPA and FWCA provide the means to protect the habitat of this population of bowhead whales.

All actions, including non-Federal activities, which may kill, injure, or harm a bowhead whale are in violation of Federal law unless specifically authorized. NMFS routinely considers applications for authorizations under the MMPA for the incidental taking of bowhead whales by harassment, largely due to noise. The authorization process for these permits is comprehensive, involving close coordination with affected subsistence users and Native governments, preparation of scientific monitoring studies, and peer-review of results. Further, these authorizations require that an activity have no more than a negligible impact to the stock, and the activity cannot have an unmitigable adverse effect on the availability of the marine mammal to subsistence users. These standards provide further assurance that the activities do not have significant consequence to bowhead whales and their habitat.

Existing laws and practices provide the means to adequately protect the habitat of the bowhead whale within the U.S. Beaufort Sea. They also provide a legal framework by which any future needs for such protection could be met.

NMFS considered the known, anticipated or potential effects of development on bowhead whale habitat in the review of this petition. NMFS has no data to indicate that the physical alteration of the Chukchi or Beaufort Seas has affected the conservation of bowhead whales. In-water noise has increased with an increase in offshore development and vessel traffic. However, NMFS will continue to work with the permitting Federal agencies and with industry through the MMPA small-take authorization process to monitor the effect of noise on bowhead whales. This monitoring is intended to identify changes in whale behavior and distribution. As a result of the many informal and formal ESA section 7 consultations, as well as the other management measures and processes discussed, the provisions contained in authorizations of project activities during project planning have mitigated potential effects to the bowhead whales and their habitat.

NMFS also has considered the status and health of the Western Arctic population of bowhead whales in making this determination. The Western Arctic population of bowhead whales appears to be recovering and has demonstrated that it is capable of recovering from the effects of commercial whaling. The current best estimate for the stock abundance is 8,200 animals with an estimated annual population growth rate of 3.2 percent. While this 1996 estimate is rather dated, recent, preliminary information from the 2001 survey indicates that the abundance has continued to increase. NMFS intends to initiate a formal ESA status review after peer review of the results of the 2001 survey.

In making its determination on whether to designate critical habitat for bowhead whales, NMFS assessed the current status of the population, all of the factors known to affect the habitat of bowhead whales, and whether existing management measures are adequate to protect that habitat. Based on this assessment, NMFS is exercising its discretion not to propose designation of critical habitat for this population of bowhead whales for the following reasons: (1) the decline and reason for listing the species was overexploitation by commercial whaling, and habitat issues were not a factor in the decline; (2) there is no indication that habitat degradation is having any negative impact on the increasing population in the present; (3) the population is abundant and increasing; and (4) existing laws and practices adequately protect the species and its habitat.

NMFS will continue to monitor this stock and protect the bowhead whale and its habitat under existing authorities and agency actions, as described in this notice. NMFS will continue to review the appropriateness of designating critical habitat during all subsequent reviews of the status of this species. These reviews will also consider whether there is a need for any additional management measures in order to conserve the Western Arctic stock of bowhead whales.