See the Supplementary Information provided in the direct final rule located in the final rule section of this Federal Register for the applicable supplementary information on this section.

The Bipartisan Campaign Reform Act of 2002, Pub. L. 107-155, 116 Stat. 81 (March 27, 2002) (“BCRA”), contained extensive and detailed amendments to the Federal Election Campaign Act of 1971, as amended, 2 U.S.C. 431 et seq. (the “Act”). On July 29, 2002, the Commission promulgated regulations in order to implement BCRA's new limitations on party, candidate, and officeholder solicitation and use of non-Federal funds. Final Rules and Explanation and Justification for Regulations on Prohibited and Excessive Contributions; Non-Federal Funds or Soft Money, 67 FR 49064 (July 29, 2002) (“Soft Money E&J”). On January 3, 2003, the Commission promulgated regulations implementing BCRA's provisions regarding payments by political committees and other persons for communications that are coordinated with a candidate, a candidate's authorized committee, or a political party committee and regarding expenditures by political party committees that are made either in coordination with, or independently from, candidates. Final Rules and Explanation and Justification for Regulations on Coordinated and Independent Expenditures, 68 FR 421 (Jan. 3, 2003) (“Coordination E&J”).

Many of the regulations promulgated in these two rulemakings apply not only to principals, such as a candidate or party committee, but also to their agents. 67 FR at 49081-82; 68 FR at 421-22. Accordingly, in each rulemaking the Commission adopted a definition of the term “agent.” 67 FR at 49081-83; 68 FR at 423-25. The two identical definitions provide that an agent is “any person who has actual authority, either express or implied” to perform certain actions. See 11 CFR 109.3 and 300.2(b). The definitions do not include persons acting only with apparent authority.

Subsequently, in Shays v. FEC, 337 F.Supp.2d 28 (D.D.C. 2004), appeal filed, No. 04-5352 (D.C. Cir. Sept. 28, 2004) (“ Shays ”), the district court held that the Commission had not satisfied the reasoned analysis requirement of the Administrative Procedures Act (“APA”) because the Commission had not provided adequate explanation of its decision to exclude from the definition of agent persons acting only with apparent authority. 1 The court based its conclusion that the Explanations and Justifications for the Commission's definitions of agent did not satisfy APA requirements on three grounds. First, the court found that the Commission had not explained why its former definition of agent, which pre-dated BCRA and which had included a definition that covered certain aspects of apparent authority, should be changed. Shays at 87. Second, the court found that the Commission had not addressed the impact that its construction of the term agent might have on preventing circumvention of the Act's limitations and prohibitions and preventing the appearance of corruption, two policies that Congress sought to advance in passing BCRA. Id. at 72, 87. Third, the court found that the Commission's main concern in excluding apparent authority from the definitions—namely to prevent a candidate or party committee from being held liable for the actions of a rogue or misguided volunteer who purports to act on behalf of the candidate or committee—was “not supported by the law of agency. * * *” Id. at 87.

The court remanded both definitions to the Commission for further action consistent with its opinion. Id. at 130. Accordingly, in order to comply with the court's decision in Shays, the Commission is now issuing this Notice of Proposed Rulemaking (“NPRM”) on the definition of agent. For reasons explained in more detail below, the Commission proposes to revise its regulations to include persons acting with apparent authority in its definitions of agent at 11 CFR 109.3 and 300.2(b). The Commission may nonetheless determine after the comment period to retain the current definitions of agent, which exclude apparent authority. Accordingly, this NPRM seeks comment both on whether apparent authority should be added to the Commission's definitions of agent and on whether there are reasons for continuing to exclude apparent authority from the definitions.

According to the common law definition of actual and apparent authority as codified in the Restatement (Second) of Agency (1958) (“Restatement”), 2 an agent's actual authority is created by manifestations of consent (express or implied) made by the principal to the agent . Restatement, § 7. Apparent authority, by contrast, is the result of manifestations the principal makes to a third party about a person's authority to act on the principal's behalf. Restatement, § 8. It is important to emphasize that apparent authority is created only where the principal's word or conduct “reasonably interpreted, causes the third party to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.” Overnite Transp. Co. v. NLRB , 140 F.3d 259, 266 (D.C. Cir. 1998) (quoting Restatement, § 27). Moreover, to have apparent authority “the third party must not only believe that the individual acts on behalf of the principal but, in addition, ‘either the principal must intend to cause the third party to believe that the agent is authorized to act for him, or he should realize that his conduct is likely to create such belief.’ ” Id. (quoting Restatement, § 27, cmt. a) (emphasis added). Finally, “apparent authority can be created by appointing a person to a position, such as that of manager or treasurer, that carries with it generally recognized duties; to those who know of the appointment there is apparent authority to do the things ordinarily entrusted to one occupying such a position, regardless of unknown limitations which are imposed upon the particular agent.” Restatement, § 27, cmt. a.

At the time the Commission decided to exclude apparent authority from its definitions of agent, its primary goal was to ensure that a principal would be able to control whether a would-be agent had authority to act on the principal's behalf. Accordingly, the Commission sought to limit a principal's liability for the actions of an agent to situations where the principal had engaged in specific conduct to create an agent's authority. Particularly, the Commission was concerned that by including apparent authority in the definition of agent it would, first, expose principals to liability based solely on the actions of a rogue or misguided volunteer and, second, “place the definition of ‘agent’ in the hands of a third party”. See Soft Money E&J , 67 FR at 49083; Coordination E&J , 68 FR at 425. The Commission seeks comment on rationales for excluding apparent authority from the definition of agent.

According to the Shays court, the scope of the common law concept of apparent authority appears to exclude from the definition of agent precisely the types of conduct that the Commission sought to exclude when it decided to limit its definitions of agent to persons acting with actual authority. Just as the Commission intended when it adopted its current definitions of agent, the common law definition of agent, including apparent authority, limits a principal's liability for a would-be agent's actions to situations where the principal has taken specific action to create authority, either actual or apparent, in a person.

Given the Shays court's interpretation of the narrow scope of apparent authority, the Commission now proposes to revise 11 CFR 109.3 and 300.2(b) by defining agent as any person acting with either actual authority, express or implied, or apparent authority, but also seeks comments on whether or not there remain reasons to exclude apparent authority from the Commission's definitions of agent.

By including persons acting with apparent authority in the definition of agent, the proposed revision would ensure that when a candidate or party committee conveys through words or actions that another person has authority to act on that candidate's or committee's behalf, then the actions of that person are imputed to the candidate or party committee for purposes of determining liability under the Commission's soft money and coordination provisions. The Commission solicits comments on whether persons acting with apparent authority should be included in the definitions of agent at 11 CFR 109.3 and 300.2(b). Is the proposed revision required by BCRA? Would the proposed revision reduce the opportunities for circumvention of the Act and the appearance of corruption? Furthermore, would including apparent authority in the definition of agent affect the exercise of political activity, and if so, how? Would including apparent authority in the definition of agent make it more difficult for a campaign or party organization to predict potential liability?

The Commission also seeks comment on whether it should specify the appropriate conclusions to be drawn from a principal's silence. Should a principal be held liable for the actions of another person based solely on the principal's failure to disavow that person's actions, or must there be some other facts present to indicate knowledge and/or complicity? Should the Commission's rules provide that the failure of a person to disavow the actions of another person shall not, without more, create apparent authority for purposes of the Act?

Alternatively, the Commission solicits comment on whether, instead of including apparent authority, it would be more consistent with the purposes of BCRA to continue to exclude persons acting only with apparent authority from the definitions of agent. The Supreme Court has noted that not every nuance of the law of agency need be incorporated into Federal statutes where full incorporation is not necessary to effect the statute's underlying purpose. See, e.g., Farragher v. City of Boca Raton , 527 U.S. 775, 802 n. 3 (1998) (The “obligation here is not to make a pronouncement of agency law in general or to transplant [the Restatement (Second) of Agency into a Federal Statute, but] is to adapt agency concepts to the [Statute's] practical objectives.”) However, would excluding apparent authority from the definitions of agent create opportunities for circumvention of the Act or permit activity that would give the appearance of corruption?

In the Soft Money E&J, the Commission reasoned that the exclusion of apparent authority from the definition of agent was appropriate because apparent authority was primarily designed to “protect innocent third parties who had suffered monetary damages as a result of reasonably relying on representations by individuals who purported to have, but did not actually have, authority to act on behalf of principals. Unlike other statutes, such as consumer protection or anti-fraud legislation, BCRA does not affect individuals who have been defrauded or have suffered economic loss due to detrimental reliance on unauthorized representations.” 67 FR at 49082. The Commission solicits comments on whether there are reasons supporting this rationale for excluding apparent authority from the definition of agent. Specifically, do the legislative purposes of BCRA of preventing circumvention of the Act and the appearance of corruption differ from those of other statutes, such as anti-fraud, consumer protection, or antitrust, in ways that support excluding apparent authority from the definition of agent?

Particularly, the Commission notes the following differences between ordinary commercial settings, which are the settings in which the concept of apparent authority has been applied, and political settings, in which the Commission's regulations operate: (1) Ordinarily, in commercial settings people have no incentive to promote a product with which they are not associated; (2) in commercial settings, those who have not suffered harm generally have no incentive or standing to file complaints, whereas in political settings opposing candidates may be motivated to impede their rivals' campaigns by filing complaints; (3) in commercial settings, businesses usually have incentives to dissuade people from purporting to act on their behalf, whereas in political settings a candidate's or party's goal is often to motivate others to act on their behalf; and finally (4) in political settings, constitutional rights are at stake that are not often at stake in commercial settings. Do these differences between commercial and political settings provide grounds for excluding apparent authority from the Commission's definitions of agent? Are there additional reasons for excluding apparent authority from the definition of agent?

Alternatively, rather than either excluding apparent authority altogether from the definitions of agent at 11 CFR 109.3 and 300.2(b) or simply adding the term “apparent authority” to these definitions, should the Commission instead provide a more narrowly tailored definition of agent? Before the Commission adopted the definition of agent in the soft money regulations in 2002, the Commission's former regulations contained a narrowly tailored definition of agent that included certain aspects of apparent authority. Specifically, former 11 CFR 109.1(b)(5) defined agent as including “any person who has been placed in a position within the campaign organization where it would reasonably appear that in the ordinary course of campaign-related activities he or she may authorize expenditures.” Former 11 CFR 109.1(b)(5) appears to be narrower than the revision proposed in this NPRM because it does not include cases where apparent authority exists for persons other than those who hold a position “where it would reasonably appear that in the ordinary course of campaign-related activities he or she may authorize expenditures.” Under the proposed revision of the definitions of agent, which would add the term “apparent authority” and rely on the Restatement for the definition of the term, a principal potentially could invest a person with the authority of an agent also by making statements to, or engaging in conduct with respect to, a third party, regardless of the position the putative agent occupies within the principal's organization. Should the Commission re-adopt the definition of agent at former 11 CFR 109.1(b)(5)? Or would that definition be either too narrow or too broad to effectuate the purposes of BCRA's soft money and independent and coordinated expenditures provisions? Would former 11 CFR 109.1(b)(5) be more or less effective than the proposed revision in preventing circumvention of the Act and the appearance of corruption?

Alternatively, the Commission seeks comments on whether it should adopt an entirely new approach towards apparent authority, different from both the definition at former 11 CFR 109.1(b)(5) and the Restatement. Commenters who propose such a new approach should explain how their proposal would be more effective than both the revision proposed in this NPRM and former 11 CFR 109.1(b)(5) in implementing the purposes of BCRA's soft money and independent and coordinated expenditures provisions, and how a wholly new approach would prevent circumvention of the Act and the appearance of corruption.

Finally, although the Commission proposes to have consistent definitions in both 11 CFR 109.3 and 300.2(b), the Commission also solicits comments on whether effective implementation of BCRA's purposes would be better served by defining agent in the soft money context differently from agent in the coordination context and, specifically, whether apparent authority should be included in one but not in the other definition.

The Commission certifies that the attached proposed rules, if promulgated, would not have a significant economic impact on a substantial number of small entities. The basis for this certification is that the national, State, and local party committees of the two major political parties, and other political committees are not small entities under 5 U.S.C. 601 because they are not small businesses, small organizations, or small governmental jurisdictions. Further, individual citizens operating under these rules are not small entities. To the extent that any political party committees or other political committees may fall within the definition of “small entities,” their number is not substantial.

For the reasons set out in the preamble, the Federal Election Commission proposes to amend subchapters A and C of chapter I of title 11 of the Code of Federal Regulations as follows:

The Bipartisan Campaign Reform Act of 2002 (“BCRA”), Pub. L. 107-155, 116 Stat. 81 (March 27, 2002), contained extensive and detailed amendments to the Federal Election Campaign Act of 1971, as amended (the “Act”), 2 U.S.C. 431 et seq. As amended by BCRA, subsection 441i(b)(1) of the Act, 2 U.S.C. 441i(b)(1), provides that State, district, and local political party committees must generally use Federal funds  1 to pay for Federal election activity (“FEA”). 2 However, subsection 441i(b)(2) provides an exception for certain activities covered by Types 1 and 2 FEA, for which State, district, and local political party committees may allocate disbursements between Federal funds and Levin funds in accordance with allocation ratios as determined by the Commission. 3 2 U.S.C. 441i(b)(2); see also 11 CFR 300.2(i), 300.32, and 300.33.

On July 29, 2002, the Commission promulgated regulations at 11 CFR Part 300 implementing BCRA's provisions concerning disbursements by State, district, and local party committees for FEA. See Final Rules and Explanation and Justification for Regulations on Prohibited and Excessive Contributions; Non-Federal Funds or Soft Money, 67 FR 49064 (July 29, 2002) (“Soft Money E&J”). The regulations at 11 CFR 300.32(c)(4) require any State, district, or local committee of a political party that disburses more than $5,000 on allocable Type 1&2 FEA in a calendar year either to pay for such allocable FEA entirely with Federal funds or to allocate disbursements between Federal funds and Levin funds. The Commission also created a de minimis exemption for any State, district, or local party committee whose disbursements for allocable Type 1&2 FEA aggregate $5,000 or less in a calendar year (the “$5,000 Exemption”), permitting such committees to pay for these types of FEA entirely with Levin funds.

In the Soft Money E&J, the Commission stated three reasons for promulgating the $5,000 Exemption at 11 CFR 300.32(c)(4). First, the Commission noted that although BCRA requires State, district, and local political party committees to report all receipts and disbursements for FEA, the statute provides an exception for committees whose FEA receipts and disbursements aggregate less than $5,000 in a calendar year. See 2 U.S.C. 434(e)(2)(A). The Commission reasoned that the reporting exception suggests that Congress did not take a rigid approach to low levels of FEA. Second, the Commission explained that it was particularly sensitive to the grassroots nature of allocable Type 1&2 FEA, stating that there is a far weaker nexus between Federal candidates and this category of FEA than the other types of FEA for which use of Levin funds is prohibited. Finally, the Commission noted that $5,000 is only half of what any single donor may donate to each and every State, district, and local political party committee under BCRA, so there is no danger that allowing a committee to use entirely Levin funds for allocable Type 1&2 FEA aggregating $5,000 or less in a calendar year would lead to circumvention of the $10,000 Levin fund donation limit in BCRA. See Soft Money E&J at 49097.

In Shays v. FEC, 337 F.Supp.2d 28, 114-117 (D.D.C. 2004), appeal filed, No. 04-5352 (D.C. Cir. Sept. 28, 2004) (“ Shays ”), the district court held that the $5,000 Exemption in 11 CFR 300.32(c)(4) was inconsistent with Congress's clear intent, as expressed in BCRA, to allow State, district, and local party committees to pay for allocable Type 1&2 FEA either solely with Federal funds or with funds allocated between Federal and Levin funds. 4 The court concluded that the $5,000 Exemption was not permissible, finding that “Congress clearly expressed its intent in BCRA's statutory language that all [FEA] pursued by state, local and district political party committees is to be paid for using federal funds, except for certain circumstances where such committees may use an ‘allocated’ ratio of federal and Levin funds.” Shays at 116-17.

The court stated that for a regulatory de minimis exemption to stand, an agency has the burden of demonstrating that following the precise language of the statute would lead to “absurd or futile results,” or that the failure to create a de minimis exemption would be “contrary to the primary legislative goal.” Shays at 117 (quoting Environmental Defense Fund v. EPA, 82 F.3d 451, 466 (D.C. Cir. 1996) quoting, in turn, State of Ohio v. EPA, 997 F.2d 1520, 1535 (D.C. Cir. 1993)). The court addressed each of the Commission's reasons for adopting the $5,000 Exemption and found that the Commission had not met the burden of demonstrating that following the precise statutory language would lead to absurd or futile results and had not shown that the $5,000 Exemption comported with BCRA's purposes. 5 Shays at 117. The court then remanded the regulations to the Commission for further action consistent with its opinion. Shays at 130.

Because the court found the $5,000 Exemption to be inconsistent with the statutory intent of 2 U.S.C 441i(b) and that the standards for upholding a de minimis exemption had not been met, the Commission proposes to delete the $5,000 Exemption from 11 CFR 300.32(c)(4). Paragraph (c)(4) of the proposed rule would require State, local, and district political party committees to pay for all allocable FEA either entirely with Federal funds or with an allocation of Federal and Levin funds pursuant to 11 CFR 300.33. The Commission solicits comments on the proposed regulation. The Commission also invites comments on whether following the precise language of BCRA would lead to “absurd or futile results,” absent promulgation of a de minimis exemption for disbursement of Levin funds by State, district, and local political party committees.

Although not reflected in the attached proposed rules, the Commission also seeks comments on whether 11 CFR 300.32(c)(4) should be revised to apply only to State, district, and local party committees with combined receipts and disbursements for FEA (whether allocable or not) that together aggregate to less than $5,000 in a calendar year. See 2 U.S.C. 434(e)(2)(A). If a de minimis exemption allowing for the exclusive use of Levin funds for allocable Type 1&2 FEA were to apply only to State, district, and local party committees with FEA receipts and disbursements aggregating less than $5,000 in a calendar year, the exemption would then apply only to those committees that are already statutorily exempt from having to report FEA under the exception contained in 2 U.S.C. 434(e)(2)(A). The Commission invites comment on whether adoption of this alternative proposal would comport with the statutory intent of 2 U.S.C 441i(b).

The Commission certifies that the attached proposed rules, if promulgated, would not have a significant economic impact on a substantial number of small entities. The basis for this certification is that the State, district, and local party committees of the two major political parties are not small entities under 5 U.S.C. 601 because they are not small businesses, small organizations, or small governmental jurisdictions. To the extent that other political party committees may fall within the definition of “small entities,” their number is not substantial.

For the reasons set out in the preamble, the Federal Election Commission proposes to amend subchapter C of chapter I of title 11 of the Code of Federal Regulations as follows:

We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed under ADDRESSES. Include “Docket No. FAA-2005-20251; Directorate Identifier 2004-NM-164-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments submitted by the closing date and may amend the proposed AD in light of those comments.

We will post all comments we receive, without change, to http://dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You can review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you can visit http://dms.dot.gov.

You can examine the AD docket on the Internet at http://dms.dot.gov, or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the DMS receives them.

We have received a report indicating that miswiring in the flight compartment has been found on Raytheon Model Hawker 800XP airplanes. In one case, this miswiring affects the radio emergency switch, which is intended to ensure that the flightcrew is able to use navigation and communication radios when the airplane batteries are depleted during an electrical emergency. However, activating the radio emergency switch under normal aircraft operating conditions links the 35-amp essential radio bus and the radio emergency bus, which results in several wires being connected to the 35-amp essential radio bus without protection by circuit breakers or fuses. If one of these wires were to short to ground or be exposed to excessive current flow, wires, connectors, relays, or surrounding circuits or equipment may be damaged. Operating the radio emergency switch in accordance with the Emergency Procedures section of the airplane flight manual (AFM) will not cause the condition. In another case, miswiring has resulted in battery no. 3 supplying power to equipment that the Emergency Procedures section of the AFM identifies as being supplied by battery no. 4 and vice versa. These conditions, if not corrected, could cause the flightcrew to be misled about the source of battery power for certain equipment, or could lead to damage to wiring and surrounding equipment that could result in smoke or fire on the airplane.

We have reviewed Raytheon Service Bulletin 24-3555, Revision 1, dated June 2004. Part 1 of the service bulletin describes procedures for visually inspecting for damage (primarily, but not limited to, evidence of heat damage) of wiring in the flight compartment. If any damage is found, corrective actions include performing repairs, or replacing damaged wiring with new wiring and replacing, with new parts, any relays or connectors from which damaged wiring extends. Part 2 of the service bulletin describes procedures for modifying certain wiring connections in the flight compartment, which includes replacing a certain circuitbreaker switch with an improved part, installing new busbars, and replacing a certain circuitbreaker with an improved part.

The service bulletin also specifies revising the Emergency Procedures section of the AFM to include a certain temporary change. We have reviewed Raytheon Hawker 800XP Temporary Change 140-590032-0005TC7, dated June 3, 2003, which is intended to inform the flightcrew which standby batteries provide power to what equipment once the actions in Raytheon Service Bulletin 24-3555, Revision 1, have been done.

Accomplishing the actions specified in Raytheon Service Bulletin 24-3555, Revision 1, is intended to adequately address the unsafe condition.

We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. Therefore, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the Proposed AD and Service Information.”

Raytheon Service Bulletin 24-3555, Revision 1, specifies visually inspecting for damage of certain wiring in the flight compartment. We find that the procedures described in the service bulletin constitute a detailed inspection. Note 1 of this proposed AD defines what we mean by “detailed inspection.”

Where Raytheon Service Bulletin 24-3555, Revision 1, specifies contacting the manufacturer for information on certain actions, this proposed AD requires that, before further flight, you must contact the FAA. Then, before further flight, any applicable action specified by the FAA must be accomplished in accordance with a method approved by the FAA.

Raytheon Service Bulletin 24-3555, Revision 1, specifies that, on certain airplanes equipped with Airshow Cabin Display, the actions in Raytheon Service Bulletin 24-3664 must be done concurrently with or subsequent to the actions in Part 2 of Raytheon Service Bulletin 24-3555, Revision 1. We have determined that it is not necessary for this proposed AD to require accomplishing Raytheon Service Bulletin 24-3664. It is possible to do all of the applicable actions in Raytheon Service Bulletin 24-3555, Revision 1, without first doing the actions in Raytheon Service Bulletin 24-3664.

Although the Accomplishment Instructions of Raytheon Service Bulletin 24-3555, Revision 1, describe procedures for reporting compliance with the service bulletin, this proposed AD would not require that action.

There are about 45 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this proposed AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD 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.

For the reasons discussed above, I certify that the 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. 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.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

We invite you to submit any written relevant data, views, or arguments regarding this proposal. Send your comments to an address listed under ADDRESSES . Include “AD Docket No. 2002-NE-40-AD” in the subject line of your comments. If you want us to acknowledge receipt of your mailed comments, send us a self-addressed, stamped postcard with the docket number written on it; we will date-stamp your postcard and mail it back to you. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. If a person contacts us verbally, and that contact relates to a substantive part of this proposed AD, we will summarize the contact and place the summary in the docket. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments.

You may examine the AD Docket (including any comments and service information), by appointment, between 8 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. See ADDRESSES for the location.

On October 21, 2003 we issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add an AD to apply to RR RB211-524 series turbofan engines, with certain P/N IP compressor stage 5 disks installed. The Office of the Federal Register published that proposal as a notice of proposed rulemaking (NPRM) in the Federal Register on October 27, 2003 (68 FR 61158). That NPRM would have required new reduced IP compressor stage 5 disk cyclic limits. The NPRM also required removing from service affected disks that already exceed the new reduced cyclic limit, and removing other affected disks before exceeding their cyclic limits, using a drawdown schedule. That NPRM resulted from the discovery of cracks in the cooling air hole areas of the disk front spacer arm. That condition, if not corrected, could result in IP compressor stage 5 disk failure, which could result in uncontained engine failure and possible damage to the airplane.

Since we issued that NPRM, we found an error in Table 3 at the date December 1, 2008 row. The cycle life limits in columns 4 and 5 of this row were written incorrectly as 12,000. We have corrected those cycle life limits to 8,900 and 9,000 CIS, respectively. We have removed the phrase “one-time” in reference to on-wing inspections. We also added a sentence to clarify that an on-wing inspection may be used to extend service life only once between shop visit inspections of the disk.

Since these changes expand the scope of the originally proposed rule, we determined that it is necessary to reopen the comment period to provide additional opportunity for public comment.

We have reviewed and approved the technical contents of RR Mandatory Service Bulletin (MSB) No. RB.211-72-D428, Revision 3, dated June 30, 2003, that specifies a drawdown schedule for removing from service affected IP compressor stage 5 disks, using new RR Time Limits Manual (TLM), 05-10-01 cyclic limits. The MSB also describes procedures for optional inspections at each shop visit to extend the disk life beyond the lives specified. The Civil Aviation Authority (CAA), the airworthiness authority of the United Kingdom (U.K.), has classified this service bulletin as mandatory and issued AD 006-04-2002 to ensure the airworthiness of these RR turbofan engines in the U.K. We have also reviewed and approved the technical contents of Service Bulletin (SB) No. RB.211-72-E148, dated March 13, 2003 and SB No. RB.211-72-E150, Revision 1, dated June 4, 2003, that provide an optional on-wing ECI of the affected disks, to extend the disk life beyond the lives specified.

This proposed AD adds a requirement to change the service cyclic limits in the Time Limits Manual and to remove or inspect disks not later than 30 days after the effective date of this AD.

These engine models, manufactured in the U.K., are type-certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Under this bilateral airworthiness agreement, the CAA has kept us informed of the situation described above. We have examined the CAA's findings, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States. Therefore, we are proposing this AD, which would require:

• Establishing new reduced IP compressor stage 5 disk cyclic limits.

• Removing from service affected disks that already exceed the new reduced cyclic limit.

• Removing other affected disks before exceeding their cyclic limits, using a drawdown schedule.

• Allowing optional inspections at each shop visit or an on-wing ECI to extend the disk life beyond the specified life.

There are about 939 RR RB211-524 series turbofan engines of the affected design in the worldwide fleet. We estimate that 35 engines installed on airplanes of U.S. registry will be affected by this proposed AD. We also estimate that it will take about 8 work hours per engine to perform an inspection, and 300 work hours per engine to replace an IP compressor stage 5 disk. The average labor rate is $65 per work hour. Required parts will cost about $49,000 per engine. Based on these figures, we estimate the total cost of the AD to U.S. operators to be $2,415,700.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD 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.

For the reasons discussed above, I certify that the 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. Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a summary of the costs to comply with this proposal and placed it in the AD Docket. You may get a copy of this summary at the address listed under ADDRESSES .

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

Background on Viticultural Areas TTB Authority

Section 105(e) of the Federal Alcohol Administration Act (the FAA Act, 27 U.S.C. 201 et seq. ) requires that alcohol beverage labels provide the consumer with adequate information regarding a product's identity and prohibits the use of misleading information on those labels. The FAA Act also authorizes the Secretary of the Treasury to issue regulations to carry out its provisions. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers these regulations.

Part 4 of the TTB regulations (27 CFR part 4) allows the establishment of definitive viticultural areas and the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) contains the list of approved viticultural areas.

Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region distinguishable by geographical features, the boundaries of which have been recognized and defined in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to its geographic origin. The establishment of viticultural areas allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of a viticultural area is neither an approval nor an endorsement by TTB of the wine produced in that area.

Section 4.25(e)(2) of the TTB regulations outlines the procedure for proposing an American viticultural area and provides that any interested party may petition TTB to establish a grape-growing region as a viticultural area. Section 9.3(b) of the TTB regulations requires the petition to include—

• Evidence that the proposed viticultural area is locally and/or nationally known by the name specified in the petition;

• Historical or current evidence that supports setting the boundary of the proposed viticultural area as the petition specifies;

• Evidence relating to the geographical features, such as climate, elevation, physical features, and soils, that distinguish the proposed viticultural area from surrounding areas;

• A description of the specific boundary of the proposed viticultural area, based on features found on United States Geological Survey (USGS) maps; and

• A copy of the appropriate USGS map(s) with the proposed viticultural area's boundary prominently marked.

Ralph Carter of Sonoma, California, submitted a petition to establish the “Covelo” viticultural area in northern Mendocino County, California. The proposed Covelo area is about 150 miles north of San Francisco and 45 miles north of Ukiah. The proposed boundary encompasses Round Valley, Williams Valley, and the surrounding foothills. The small, rural town of Covelo lies within Round Valley, and a portion of the Round Valley Indian Reservation overlaps the proposed area's northern end.

This 38,000-acre area currently has 2 acres of planted grape vines, with the potential for more vineyard development in the valley and on the surrounding hillsides, according to the petition. The petition does not document a history of grape growing in the proposed area.

According to the petition, the bowl-shaped basin of Round Valley, which lies within the proposed Covelo viticultural area, is distinctly different from the long, narrow valleys more commonly found in Mendocino County. In addition, the petition notes that the soils in the proposed Covelo area are, for the most part, very deep, nearly level loam, which differ significantly from the soils in the surrounding areas. The proposed Covelo area has a shorter growing season when compared with other Mendocino County viticultural areas, the petition states, along with comparatively high annual rain levels and some snow.

Covelo is the name of a small, rural town within Round Valley in Mendocino County, California. The town appears on the United States Geological Survey (USGS) quadrangle maps of Covelo East and Covelo West, and on the 2002 Rand McNally California map provided with the petition. The California State Automobile Association's Mendocino and Sonoma Coast map identifies Covelo as a rural township in northwest California. The 1988 DeLorme Northern California map also shows the town of Covelo and “Covelo Road” (State Highway 162), which runs through the proposed viticultural area.

The National Oceanic and Atmospheric Administration's California Climatological Data report of October 1999 includes temperature data for the Covelo weather station. The Covelo East USGS quadrangle map shows that the Covelo Ranger Station is about a mile north of the town.

The distinctive elements of the proposed Covelo viticultural area, the petition states, are its geography, climate, and growing season. The proposed Covelo area, as described in the petition and noted on USGS maps, is largely a round, flat valley isolated from surrounding regions by a ring of foothills and mountains. The petitioner included the foothills immediately adjacent to valley floor within the proposed area because of the hillside's viticultural potential, but excluded the higher and steeper mountainous terrain beyond the proposed area's boundary since that mountainous terrain is less suitable for commercial viticulture.

The petition explains that the proposed area's boundaries encompass Covelo's microclimate, which is created by the distinct combination of the area's geographic self-containment and its inland location. The area's climate has significant day and night temperature differences, and a short grape-growing season. This isolated valley climate differs from the marine-influenced climate found in most of the surrounding regions of Mendocino County.

The petitioner drew the proposed area's boundary using a series of peaks and elevation benchmarks in the hills surrounding the Round and Williams Valleys. These elevation points vary from a low of 1,762 feet on the proposed area's southern boundary to a high of 2,792 feet on its northern boundary.

The proposed Covelo viticultural area's boundary surrounds Round Valley, the bowl-shaped basin in which the town of Covelo lies. This broad, round, and flat-floored valley differs significantly from the long, narrow valleys commonly found in mountainous areas of Mendocino County, according to the petition. The proposed area also includes the smaller Williams Valley, located to Round Valley's northeast, and the hillsides that surround the two valleys. The provided USGS maps note that Round Valley's floor varies from 1,310 feet in elevation in the southeast to 1,480 feet in elevation in the northwest, while the surrounding hillsides are less than 2,800 feet high.

As noted above, the petitioner used a series of peaks and elevation points under 2,800 feet in elevation to draw the boundary of the proposed Covelo viticultural area. In contrast to the proposed area, the higher elevations of the mountains that surround it vary between 4,000 and 7,000 feet in elevation, according to the petition. These higher mountains, the petition explains, geographically and climatically isolate the proposed Covelo viticultural area from surrounding regions.

The high mountain peaks that surround the proposed area, and the Coast Range, which parallels the Pacific Ocean to the area's west, block the inland flow of climate-moderating marine air and fog into the proposed Covelo viticultural area, according to the petition. Given this geographic isolation, the petition notes, the proposed Covelo viticultural area has a continental climate, which has greater temperature swings and a shorter growing season than the marine-influenced climate commonly found in the surrounding regions of Mendocino County.

The proposed Covelo viticultural area's short growing season, the petition emphasizes, may be its most distinguishing characteristic. The frost-free growing season is commonly 125 days, or about four months, long. Covelo's average growing season minimum temperature is also significantly lower than that of the established Potter Valley viticultural area (27 CFR 9.82), which is about 33 miles to the proposed area's south.

The petition states that with 3,000 degree days, the Covelo viticultural area marginally falls into Region 3, of Winkler's climate classification system. (During the growing season, one degree day accumulates for each degree Fahrenheit that a day's average temperature is above 50 degrees, which is the minimum temperature required for grapevine growth. See “General Viticulture,” by Albert J. Winkler, University of California Press, 1974.) The table below shows the petitioner's comparison of degree day for grape-growing regions near the proposed Covelo viticultural area.

According to the petition, the proposed Covelo viticultural area's summer temperatures have greater day-to-night variations (between 40 and 66 degrees in the valley) than the areas surrounding it. Also, in October (the final month of the summer growing season) the proposed viticultural area has 90 fewer degree-day units of heat than other Region 3 viticultural areas in the Mendocino region.

The proposed Covelo viticultural area, the petition notes, receives an average of 40 inches of rain a year, which is the highest average of any valley in northern Mendocino County. The petition explains, however, that annual rainfall in the proposed area varies widely. In 1998, the proposed Covelo viticultural area received 65 inches of rain, while in 2000, it received 36 inches, according to the National Oceanic and Atmospheric Administration's Climatological Data Annual Summary reports of California for 1997 through 2001, which were included in the petition. In addition, the proposed Covelo viticultural area's valley basin receives about 7 inches of snow annually, with higher amounts falling on the surrounding hillsides.

The petition notes that the proposed Covelo viticultural area is composed of alluvial plains, alluvial fans, and a valley basin, which are geographically younger than the surrounding higher elevations. While the alluvial deposits on the valley floor share the mineralogy of the Franciscan rocks of the surrounding hills, the petition explains that Covelo's valley basin soils differ distinctly from the soils found in the foothills surrounding the valley.

As noted in the petition, Feliz-Russian-Cole soils cover about 50 percent of the proposed Covelo viticultural area. These soils, which are found in the Round Valley basin, have neutral-to-alkaline soil pH chemistry, in contrast with the acidity found in the hillside soils.

The Sanhedren-Speaker-Kekawaka association, which is a deep to very deep, well-drained loam and gravelly loam, predominates in the northern, eastern, and western foothills surrounding Round Valley, according to the petition. In the southern foothills, the Dingman-Beaughton-Henneke association (a well-drained, gravelly loam and cobbly clay loam) and the Hopland-Yorktree-Witherell association (a well-drained loam and sandy loam) predominate.

The petition adds that soils of the Franciscan Formation, a blue schist and semi-schist of Franciscan Complex, cover the mountainous terrain above the proposed area's boundary.

See the narrative boundary description of the petitioned-for viticultural area in the proposed regulatory text published at the end of this notice.

The petitioner(s) provided the required maps, and we list them below in the proposed regulatory text.

Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. If we establish this proposed viticultural area, its name, “Covelo,” will be recognized as a name of viticultural significance. Consequently, wine bottlers using “Covelo” in a brand name, including a trademark, or in another label reference as to the origin of the wine, will have to ensure that the product is eligible to use the viticultural area's name as an appellation of origin. The proposed part 9 regulatory text set forth in this document specifies the “Covelo” name as a term of viticultural significance for purposes of part 4 of the TTB regulations.

For a wine to be eligible to use as an appellation of origin the name of a viticultural area specified in part 9 of the TTB regulations, at least 85 percent of the grapes used to make the wine must have been grown within the area represented by that name, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible to use the viticultural area name as an appellation of origin and that name appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the viticultural area name appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Accordingly, if a new label or a previously approved label uses the name “Covelo” for a wine that does not meet the 85 percent standard, the new label will not be approved, and the previously approved label will be subject to revocation, upon the effective date of the approval of the Covelo viticultural area.

Different rules apply if a wine has a brand name containing a viticultural area name that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.

We invite comments from interested members of the public on whether we should establish the proposed viticultural area. We are also interested in receiving comments on the sufficiency and accuracy of the name, boundary, climactic, and other required information submitted in support of the petition. Please provide any available specific information in support of your comments.

Because of the potential impact of the establishment of the proposed Covelo viticultural area on brand labels that include the words “Covelo” as discussed above under Impact on Current Wine Labels, we are particularly interested in comments regarding whether there will be a conflict between the proposed area name and currently used brand names. If a commenter believes that a conflict will arise, the comment should describe the nature of that conflict, including any negative economic impact that approval of the proposed viticultural area will have on an existing viticultural enterprise. We are also interested in receiving suggestions for ways to avoid any conflicts, for example by adopting a modified or different name for the viticultural area.

Please submit your comments by the closing date shown above in this notice. Your comments must include this notice number and your name and mailing address. Your comments must be legible and written in language acceptable for public disclosure. We do not acknowledge receipt of comments, and we consider all comments as originals. You may submit comments in one of five ways:

• Mail: You may send written comments to TTB at the address listed in the ADDRESSES section.

• Facsimile: You may submit comments by facsimile transmission to 202-927-8525. Faxed comments must—

(1) Be on 8.5- by 11-inch paper;

(2) Contain a legible, written signature; and

(3) Be no more than five pages long. This limitation assures electronic access to our equipment. We will not accept faxed comments that exceed five pages.

• E-mail: You may e-mail comments to nprm@ttb.gov. Comments transmitted by electronic mail must—

(1) Contain your e-mail address;

(2) Reference this notice number on the subject line; and

(3) Be legible when printed on 8.5- by 11-inch paper.

Online form: We provide a comment form with the online copy of this notice on our Web site at http://www.ttb.gov/alcohol/rules/index.htm. Select the “Send comments via e-mail” link under this notice number.

• Federal e-Rulemaking Portal: To submit comments to us via the Federal e-rulemaking portal, visit http://www.regulations.gov and follow the instructions for submitting comments.

You may also write to the Administrator before the comment closing date to ask for a public hearing. The Administrator reserves the right to determine, in light of all circumstances, whether to hold a public hearing.

All submitted material is part of the public record and subject to disclosure. Do not enclose any material in your comments that you consider confidential or inappropriate for public disclosure.

You may view copies of this notice, the petition, the appropriate maps, and any comments we receive by appointment at the TTB Library at 1310 G Street, NW., Washington, DC 20220. You may also obtain copies at 20 cents per 8.5- × 11-inch page. Contact our librarian at the above address or telephone 202-927-2400 to schedule an appointment or to request copies of comments.

For your convenience, we will post this notice and any comments we receive on this proposal on the TTB Web site. We may omit voluminous attachments or material that we consider unsuitable for posting. In all cases, the full comment will be available in the TTB Library. To access the online copy of this notice, visit http://www.ttb.gov/alcohol/rules/index.htm. Select the “View Comments” link under this notice number to view the posted comments.

We certify that this proposed regulation, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of a viticultural area name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.

This proposed rule is not a significant regulatory action as defined by Executive Order 12866, 58 FR 51735. Therefore, it requires no regulatory assessment.

N.A. Sutton of the Regulations and Procedures Division drafted this notice.

For the reasons discussed in the preamble, we propose to amend title 27, chapter I, part 9, Code of Federal Regulations, as follows:

Background

On October 30, 2002, the Bureau of Alcohol, Tobacco and Firearms, the predecessor agency to the Alcohol and Tobacco Tax and Trade Bureau (TTB), published in the Federal Register as Notice No. 960 (67 FR 66079) a notice of proposed rulemaking regarding the establishment of the Red Hill (Oregon) viticultural area. The notice requested comments by December 30, 2002, from all interested persons.

Notice No. 960 included a discussion of the name evidence for Red Hill. As noted in Notice No. 960, the Red Hill name has been used in Douglas County, Oregon, for over 100 years. Historically, the Applegate and the Scott families settled at the foot of Red Hill in the mid-19th century. By 1879, settlers established a school district in the Red Hill area, and built a schoolhouse on Red Hill Road (identified in the southeast corner of the United States Geological Survey (USGS) Drain, Oregon, map in section 26, T23S/R5W. The school district operated until 1943 when it merged with the Pleasant Valley District. “Douglas County Schools, A History Outline,” by Larry Moulton, October 2000, includes a hand-drawn map and directions to the “Red Hill School Site.” The Red Hill School now stands abandoned.

The USGS Drain, Oregon, map labels “Red Hill” in sections 35, 26 and 23, T23S/R5W. The map also identifies a light duty road meandering through the region as “Red Hill Road.” Interstate 5 signage at exit number 150 in northern Douglas County, Oregon, includes the “Red Hill” name and directional information to the area. The USGS Geographical Names Information System identifies “Red Hill” as an area in Douglas County, Oregon. Douglas County is located in southwest Oregon, as noted the Oregon-Washington American Automobile Association State Series map, published February 2003, and on page 92, “Oregon,” of the American Map 2002 Road Atlas.

After publication of Notice No. 960, TTB twice re-opened the comment period for additional public comments on the entire petition. Notice No. 966 (68 FR 2262), published on January 16, 2003, requested comments by March 17, 2003. TTB Notice No. 6 (68 FR 20090), published on April 24, 2003, requested comments by May 27, 2004.

In response to these notices, TTB received a total of 32 comments, with 16 supporting and 12 opposing the petition, 1 requesting an extension of the comment period, and 3 requesting a public hearing.

Supporting commenters focused on the distinctive features of the proposed area and the locally known Red Hill name. Opposing commenters expressed concern about the potential name confusion with other geographical areas, the similarity of the proposed name to other wine brand names, and the geographical and climatic evidence submitted for the proposed area.

After reviewing the comments, TTB suggested that the petitioner provide an alternative name for the proposed viticultural area because its originally proposed name could be confused with similar names of other geographical areas and with brand names used on wines from those other areas. The petitioner, after some consideration, withdrew the original “Red Hill (Oregon)” name and proposed in its place the name “Red Hill Douglas County, Oregon.” TTB believes the Red Hill Douglas County, Oregon name is appropriate for the area and will not create any confusion with other geographical areas or wine brand names that contain the words “Red Hill.”

Accordingly, we are reopening the comment period for Notice No. 960 for the specific purpose of eliciting comments on the new name for the proposed viticultural area. We are also modifying the proposed part 9 regulatory text by adding a second sentence to paragraph (a) to define the viticultural significance of the new proposed name. We explain the impact of the adoption of this viticultural area name and its relevance to this comment solicitation in more detail below.

Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. If we establish this proposed viticultural area, its name, “Red Hill Douglas County, Oregon,” will be recognized as a name of viticultural significance. Consequently, wine bottlers using “Red Hill Douglas County, Oregon” in a brand name, including a trademark, or in another label reference as to the origin of the wine, will have to ensure that the product is eligible to use the viticultural area's name as an appellation of origin. On the other hand, we do not believe that any single part of the proposed viticultural name standing alone, such as “Red Hill,” would have viticultural significance if the new area is established. Accordingly, the proposed part 9 regulatory text set forth in this document specifies only the full “Red Hill Douglas County, Oregon” name as a term of viticultural significance for purposes of part 4 of the TTB regulations.

For a wine to be eligible to use as an appellation of origin the name of a viticultural area specified in part 9 of the TTB regulations, at least 85 percent of the grapes used to make the wine must have been grown within the area represented by that name. If the wine is not eligible to use the viticultural area name as an appellation of origin and that name appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the viticultural area name appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Accordingly, if a new label or a previously approved label uses the name “Red Hill Douglas County, Oregon” for a wine that does not meet the 85 percent standard, the new label will not be approved, and the previously approved label will be subject to revocation, upon the effective date of the approval of the Red Hill Douglas County, Oregon viticultural area.

Different rules apply if a wine has a brand name containing a viticultural area name that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.

In addition to the name change discussed above, the proposed regulatory text set forth in this notice includes a redraft of the boundary description for the petitioned-for viticultural area. We took this action to ensure ease of understanding and to describe the boundary line in a clockwise rotation. The redrafted description makes no change to the location of the boundary as set forth in Notice No. 960.

We invite comments from interested members of the public on the new proposed “Red Hill Douglas County, Oregon” viticultural area name and on the redrafted boundary description. Please provide any available specific information in support of your comments. We will not consider comments on other aspects of Notice No. 960 that are not addresses in this notice.

Because of the potential impact of the establishment of the proposed Red Hill Douglas County, Oregon viticultural area on brand labels that include the words “Red Hill Douglas County, Oregon” as discussed above under “Impact on Current Wine Labels,” we are particularly interested in comments regarding whether there will be a conflict between the proposed area name and currently used brand names. If a commenter believes that a conflict will arise, the comment should describe the nature of that conflict, including any negative economic impact that approval of the proposed viticultural area will have on an existing viticultural enterprise. We are also interested in receiving suggestions for ways to avoid any conflicts, for example by adopting a modified or different name for the viticultural area.

Although TTB believes that only the full name “Red Hill Douglas County, Oregon” should be considered to have viticultural significance upon establishment of the proposed new viticultural area, we also invite comments from those who believe that other parts of the name, standing alone, would have viticultural significance upon establishment of the area. Comments in this regard should include documentation or other information supporting the conclusion that use of a part of the name, standing alone, on a wine label could cause consumers and vintners to attribute to the wine in question the quality, reputation, or other characteristic of wine made from grapes grown in the proposed Red Hill Douglas County, Oregon viticultural area.

All submitted material is part of the public record and subject to disclosure. Do not enclose any material in your comments that you consider confidential or inappropriate for public disclosure.

Please submit your comments by the closing date shown above in this notice. All comments must include this notice number and your name and mailing address. Your comment must be legible and written in language acceptable for public disclosure. We do not acknowledge receipt of comments, and we consider all comments as originals. You may submit comments in one of five ways:

• Mail: You may send written comments to TTB at the address listed in the ADDRESSES section.

• Facsimile: You may submit comments by facsimile transmission to 202-927-8525. Faxed comments must—

(1) Be on 8.5- by 11-inch paper;

(2) Contain a legible, written signature; and

(3) Be no more than five pages long. This limitation assures electronic access to our equipment. We will not accept faxed comments that exceed five pages.

• E-mail: You may e-mail comments to nprm@ttb.gov. Comments transmitted by electronic mail must—

(1) Contain your e-mail address;

(2) Reference this notice number on the subject line; and

(3) Be legible when printed on 8.5- by 11-inch paper.

• Online form: We provide a comment form with the online copy of this notice on our Web site at http://www.ttb.gov/alcohol/rules/index.htm. Select the “Send comments via e-mail” link under this notice number.

• Federal e-Rulemaking Portal: To submit comments to us via the Federal e-rulemaking portal, visit http://www.regulations.gov and follow the instructions for submitting comments.

You may view copies of this notice, the petition, the appropriate maps, and any comments we receive by appointment at the TTB Library at 1310 G Street, NW., Washington, DC 20220. You may also obtain copies at 20 cents per 8.5- by 11-inch page. Contact our librarian at the above address or telephone 202-927-2400 to schedule an appointment or to request copies of comments.

For your convenience, we will post this notice and any comments we receive on the TTB Web site. We may omit voluminous attachments or material that we consider unsuitable for posting. In all cases, the full comment will be available in the TTB Library. To access the online copy of this notice, visit http://www.ttb.gov/alcohol/rules/index.htm. Select the “View Comments” link under this notice number to view the posted comments.

Nancy Sutton of the Regulations and Procedures Division, Alcohol and Tobacco Tax and Trade Bureau, drafted this notice.

Notice No. 960 was issued under the authority of 27 U.S.C. 205. For the reasons discussed in the preambles of Notice No. 960 and this notice, we propose to amend title 27, chapter I, part 9, Code of Federal Regulations, as follows:

In the final rules section of the Federal Register , EPA is approving the state's SIP revision as a direct final rule without prior proposal because the Agency views this as a noncontroversial revision amendment and anticipates no relevant adverse comments to this action. A detailed rationale for the approval is set forth in the direct final rule. If no relevant adverse comments are received in response to this action, no further activity is contemplated in relation to this action. If EPA receives relevant adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed action. EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the rules section of this Federal Register .

This action is directed to the public in general. It simply announces the submission of a draft proposed rule to USDA and does not otherwise affect any specific entities. This action may, however, be of particular interest to you if you hold pesticide registrations, use pesticides, or are interested in the regulation of the sale, distribution or uses of pesticides. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be interested in this action. If you have any questions regarding this action, consult the person listed under FOR FURTHER INFORMATION CONTACT .

1. Docket . EPA has established an official public docket for this action under docket identification number OPP-2005-0014. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1801 S. Bell St., Arlington, VA. This docket facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The docket telephone number is (703) 305-5805.

2. Electronic access . You may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/ .

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. Once in the system, select “search,” then key in the appropriate docket ID number.

Section 25(a)(2) of FIFRA requires the Administrator to provide the Secretary of Agriculture with a copy of any proposed regulation at least 60 days before signing it for publication in the Federal Register . The draft proposed rule is not available to the public until after it has been signed by EPA. If the Secretary comments in writing regarding the draft proposed rule within 30 days after receiving it, the Administrator shall include the comments of the Secretary and the Administrator's response to those comments in the proposed rule when published in the Federal Register . If the Secretary does not comment in writing within 30 days after receiving the draft proposed rule, the Administrator may sign the proposed regulation for publication in the Federal Register anytime after the 30-day period.

No. This document is not a proposed rule, it is merely a notification of submission to the Secretary of Agriculture. As such, none of the regulatory assessment requirements apply to this document.

Section 4(b)(3)(A) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ) (Act), requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on all information available to us at the time we make the finding. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition, and publish our notice of this finding promptly in the Federal Register .

Our standard for substantial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial information was presented, we are required to promptly commence a review of the status of the species, if one has not already been initiated, under our internal candidate assessment process.

In making this finding, we relied on information provided by the petitioners and evaluated that information in accordance with 50 CFR 424.14(b). This finding summarizes information included in the petition and information available to us at the time of the petition review. Our process of coming to a 90-day finding under section 4(b)(3)(A) of the Act and section 424.14(b) of our regulations is limited to a determination of whether the information in the petition meets the “substantial information” threshold.

We do not conduct additional research at this point, nor do we subject the petition to rigorous critical review. Rather, as the Act and regulations contemplate, in coming to a 90-day finding, we accept the petitioner's sources and characterizations of the information unless we have specific information to the contrary.

Our finding considers whether the petition states a reasonable case for listing on its face. Thus, our finding expresses no view as to the ultimate issue of whether the species should be listed. We reach a conclusion on that issue only after a more thorough review of the species' status. In that review, which will take approximately 9 more months, we will perform a rigorous, critical analysis of the best available scientific and commercial information, not just the information in the petition. We will ensure that the data used to make our determination as to the status of the species is consistent with the Act and Information Quality Act.

On January 7, 2002, we received a petition dated January 2, 2002, requesting that we list the Gentry indigo bush ( Dalea tentaculoides ) as an endangered species, and that critical habitat be designated concurrently with the listing. The petition, submitted by the Center for Biological Diversity (Center), was clearly identified as a petition for a listing rule, and contained the names, signatures, and addresses of the requesting parties. Included in the petition was supporting information regarding the species' taxonomy and ecology, historical and current distribution, present status, and potential causes of decline. We acknowledged the receipt of the petition in a letter to Mr. Noah Greenwald, dated April 25, 2002. In that letter, we also advised the petitioners that due to funding constraints in fiscal year (FY) 2002, we would not be able to begin processing the petition in a timely manner.

On January 21, 2003, the Center sent a Notice of Intent to sue for violating the Act by failing to make a timely 90-day finding on the petition to list the Gentry indigo bush. On September 17, 2003, the Center filed a complaint against the Secretary of the Interior and FWS for failure to make a 90-day petition finding under section 4 of the Act for the Gentry indigo bush. In a Stipulated Settlement Agreement, signed June 14, 2004, we agreed to submit a 90-day finding to the Federal Register by January 31, 2005 [ Center for Biological Diversity v. Norton , CV 03-473-TUC-FRZ (D. Az)]. This notice constitutes our 90-day finding for the petition to list the Gentry indigo bush.

Gentry indigo bush is an erect perennial shrub that grows from a woody root crown and can be up to 1 meter (m) (3.2 feet (ft)) tall. It is a member of the Leguminosae (Pea) Family. The leaves are compound, 3-6 centimeters (cm) (1.2-2.4 inches (in)) long with 9-17 pairs of leaflets. The leaflets are hairless, notched at the tip, and dotted with punctuate (translucent pitted glands or colored dots) glands on the lower surface. The flowers are sessile (lacking a stalk), 6 millimeters (mm) (0.24 in) in length, and are presented in oblong clusters. The flower petals are rose-purple. Plants flower in the spring, from late March to mid-May. They may produce a second set of flowers in late summer and fall in response to monsoon precipitation.

Howard S. Gentry originally described the species in 1950. It is a distinctive member of the genus Dalea with no closely related species (Gentry 1950, Barneby 1977). The main distinguishing character that serves to separate this species from other sympatric species is the presence of elongate, brown tentacle-like glands on the calyx (the outer whorl of flowering parts) lobes, floral bracts (the reduced or modified leaf subtending a flower), and branches.

Gentry indigo bush has been known historically from only three areas in southern Arizona: the west and north sides of the Baboquivari Mountains (Tohono O'odham Nation), the Coyote Mountains (Mendoza Canyon), and Sycamore Canyon (Coronado National Forest) in the Atascosa Mountains. Today, the only known extant population in the United States is in Sycamore Canyon. The plant was located in Mexico (NE of Huasabas in the State of Sonora) in 1995, and in 2004, the species was reported from Sierra El Humo, SSW of Sasabe, Arizona, in northwestern Sonora, Mexico (L. Hahn, pers. comm., 2004). (The 2004 location information was not included in the petition.) There was no population information provided on the Mexican locations.

It is likely that the species still persists in the Baboquivari Mountains, but there have been no recent surveys to verify the presence of the species. These sites are within the Tohono O'odham Nation, and surveys could only be conducted by Tribal members or with permission from the Tribe. A status report for Gentry indigo bush was completed in 1992 (Gori et al. ), and all of the known historical locations (except on the Tohono O'odham Nation) were surveyed. Areas of suitable habitat were also surveyed. No plants were found in the Coyote Mountains, and the authors surmised in the status report that the population was extirpated, possibly due to past grazing practices. In the status report the authors stated, “Mendoza Canyon was heavily grazed by cattle and dominated by Acacia greggii (catclaw acacia) to an extent we have rarely encountered in Southern Arizona. Such heavy cover of invasive shrubs is indicative of a long history of overgrazing.” No plants were located in any of the other areas surveyed, including canyons in the following mountain ranges in Sonora, Mexico: Sierra Cibuta, La Colorada, Sierra el Tigre, Sierra los Ajos, Sierra Azul, Arroyo Las Fresnos, Sierra San Diego, La Angostura, and Sierra San Luis (Gori et al. 1992).

Gentry indigo bush grows in scattered patches at elevations of 1,097 to 1,219 m (3,600 to 4,000 ft) in Sycamore Canyon and several side channels. Plants are usually found on floodplain terraces in sandy or gravel soils, or, less commonly, on talus slopes close to the floodplain. The usual tree canopy for Gentry indigo bush consists of Arizona sycamore ( Platanus wrightii ), Arizona ash ( Fraxinus velutina ), Arizona walnut ( Juglans major ), and several oak species. Plants can be found growing under these trees or out in the open. Gentry indigo bush grows in the semi-active floodplain, meaning they are exposed to periodic flooding and scouring events. Observations made by Gori et al. (1992) and Falk (1993) support the idea that plants are adapted to periodic, low-intensity floods. Plants that had been covered with sediment were found to be growing up through the deposited material. The plants reproduce vegetatively (asexually) and roots almost always connect young plants to nearby larger clumps. To date, there has been no documented sexual reproduction in the field. In fact, plants rarely, if ever, have been observed to produce seed (Falk 1993, Gori et al 1992). Staff from the Desert Botanical Garden collected approximately 50 seeds from plants they assumed to be Gentry indigo bush in 1998, but no germination tests have been conducted (K. Rice, pers. comm. 2004).

This species has adaptations to withstand periodic, low-intensity flooding, but the population in Sycamore Canyon has experienced population fluctuations, some of those associated with flood events. Following severe winter flooding in 1993, a large portion of a monitoring plot that had been established on a floodplain terrace washed away and the population declined to 15-30 plants (Falk 1993). Gori et al. (1992) estimated that there were 1,400 “individuals” in Sycamore Canyon before the heavy rains of 1993.

Gentry indigo bush was determined to be a candidate species as published in the 1980 Plant Notice of Review (45 FR 82480). A species with candidate status is one for which we have collected and assessed information sufficient to propose listing the species. The removal of candidate status for Gentry indigo bush was published on April 2, 1998 (63 FR 16217). The reasons supporting removal from the candidate list were (1) the taxon was more abundant or widespread than previously believed or not subject to any identifiable threats; and (2) the FWS had insufficient information on biological vulnerability and threats to support issuance of a proposed rule to list. However, as described below, subsequent information from the U.S. Forest Service describes a significant decline in the only known U.S. population.

Gentry indigo bush has always been considered rare. Gori et al. (1992) refer to the species as “extremely rare.” The loss of the population documented from Mendoza Canyon in the Coyote Mountains increased concerns regarding this rare taxon. Gentry indigo bush was once collected on the west slope of the Baboquivari Mountains. Toolin (1982) was unable to locate the species in 1981 and observed that the habitat had been “exceedingly modified” by overgrazing. This observation lends some uncertainty to the status of the populations on the Tohono O'odham Nation as the grazing regime is unknown in this area. Given these circumstances, attention on this species in the United States has been focused on the remaining population in Sycamore Canyon. As stated earlier, numbers of that population fluctuated dramatically between 1992 and 1993; numbers dropped from 1,400 to between 15-30 plants. Additional survey work in Mexico has documented at least two locations of Gentry indigo bush from Mexico, but we have no information on the size of those populations. Also, we have no information related to the threats to these populations and are unaware of any protection for these sites.

A status report (Toolin 1982) documented only 100 plants from Sycamore Canyon. The Sycamore Canyon population was assessed in 1997 (Bertelsen), and 499 individuals were located. A survey by Brooks (1999) found 194 plants in Sycamore and Penasco Canyons (a tributary to Sycamore). Since that time, there has been no systematic survey of Sycamore Canyon to determine the status of this population. A Forest Service biologist reported seeing some patches of Gentry indigo bush while surveying for Sonora chub in the canyon (2000, 2001).

An internal memorandum to our files (Roller 1998) concluded “the species capacity to recover does not negate the threat of extirpation to this extremely localized endemic, as it relates to extreme flood events within the watershed.” We also expressed concern with the observed lack of seed production as this leaves the species without an effective seed bank that would be needed in order to recover from a catastrophic flood event.

Under section 4(a) of the Act, we may list a species on the basis of any of five factors, as follows: “(A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; (E) other natural or manmade factors affecting its continued existence.” The petitioners contend that four of the five factors (A, C, D, and E) are applicable to the Gentry indigo bush (see below). A brief discussion of how each of the five listing factors applies to the Gentry indigo bush follows:

Factor A: The present or threatened destruction, modification, or curtailment of its habitat or range.

With respect to Factor A, the petitioners cite the loss of plants and alteration of habitat associated with livestock grazing as threats to the Gentry indigo bush. The petitioners note that Gentry indigo plants are palatable to livestock, subject to trampling, and that livestock grazing may alter the stream dynamics associated with Gentry indigo bush habitat. The alteration of stream habitat includes soil compaction, streambank erosion, and removal of riparian vegetation. Although the Gentry indigo bush may benefit from some disturbance due to its ability to reproduce asexually, increased surface runoff, higher intensity floods, stream downcutting, and increased scouring and deposition could contribute to the elimination of populations.

Information currently available indicates that the loss of plants and habitat to these causes may be a significant threat to the status of this species. Toolin (1982) states, “Habitat of this species in canyons on the west slope of the Baboquivari Mountains where this species formerly occurred has been exceedingly modified by over-grazing by livestock, and that population has apparently been extirpated.” Gori et al. (1992) concluded, “Our surveys of Sycamore and Mendoza Canyons lead us to believe that grazing constitutes a threat to D. tentaculoides. We observed direct evidence of livestock browsing on, and even uprooting, the species in lower Sycamore Canyon where trespass cows from Mexico enter the canyon up to an impassable narrows.”

Sycamore Canyon is within the boundaries of the Coronado National Forest, Nogales Ranger District. It is also within a designated Research Natural Area (Goodding RNA). Livestock grazing is not permitted within the boundaries of the RNA, but trespass cattle use has been a sporadic problem (U.S. Department of Agriculture 1998). Cattle have been observed in the upper reaches of the canyon (Falk pers. observation, Brooks 1999), and Brooks noted heavy cattle use below “the narrows,” most likely attributable to trespass livestock from Mexico. In 1997, the Forest Service proposed a set of actions in Sycamore Canyon to protect the federally threatened Sonora chub ( Gila ditaenia ). One of those actions included building a fence at the northern portion of the canyon to restrict livestock access to the riparian areas. If this fence is maintained, it could help alleviate problems with cattle in the upper reaches of Sycamore Canyon. However, trespass cattle from Mexico are another problem. Sycamore Canyon extends south into Mexico. Historically, the border fence has been in a state of continual disrepair. In the fall of 1998, 2.4 kilometers (km) (1.5 miles (mi)) of fence along the border was repaired. We do not know the current condition of this fence. Recent increases in undocumented U.S. and Mexico border crossing activity contribute to the fence being continually cut.

Watershed degradation maybe a concern in this canyon. The Bear Valley allotment surrounds Sycamore Canyon. It is 9,197.5 hectares (ha) (22,710 acres (ac)) in size. Site-specific soil surveys (2002) indicated that 75 percent of the allotment is in satisfactory condition, 16 percent impaired, 8 percent unsatisfactory and 1 percent is unsuitable condition. A Forest Service hydrologist (Lefevre 2000) concluded, “Mankind's influence on Sycamore Canyon is mostly related to downcutting of the channel system, sediment movement, and sediment yield to the stream. Human settlement and cattle grazing, and the roads associated with these activities, has resulted in erosion rates above that which would be expected under unroaded, unmined and ungrazed conditions. The effects of this additional sediment may be seen in the reaches of the channel where deposits of gravel have filled pools. Downcut channel reaches may also be attributed to mankind's effects on the uplands because peak flows were artificially increased during the past century.”

The movement of water and sediment in Sycamore Canyon may have affected the plants. After the 1993 El Niño winter rains, most of the monitoring plot had been washed away and the plant population had experienced a dramatic decline, with more than 90 percent of the known individuals washed away or covered with sediment. Recovery has been slow; at last count there were only 194 plants in Sycamore Canyon (Brooks 1999). That is only 14 percent of the 1,400 plants documented in 1992. The watershed conditions in the Sycamore Canyon drainage may have contributed to the current status of Gentry indigo bush.

Factor B: Overutilization for commercial, recreational, scientific, or educational purposes.

With respect to Factor B, the petitioners did not provide information. We also have no information on the overutilization of this plant species for commercial, recreational, educational, or scientific purposes.

Factor C: Disease or predation.

With respect to Factor C, the petitioners again referred to the plant's palatability, both to livestock and rabbits. They provided one observation of a plant being almost totally eaten by a rabbit (Brooks 1999). We acknowledge that rabbits may eat plants, but do not think this constitutes a major threat to the species because of the size of mature plants. We have already discussed the effects of livestock grazing on Gentry indigo bush under Factor A.

Factor D: The inadequacy of existing regulatory mechanisms.

With respect to Factor D, the petitioners cite the inadequacies of the protections put forth by the Forest Service for the Goodding RNA and Sycamore Canyon. The Forest Service has stated that Gentry indigo bush is afforded a high level of protection because it shares its habitat with critical habitat of the federally listed Sonora chub. The Forest Service has done much work to improve the habitat of Sonora chub, including removal of a road at the mouth of Sycamore Canyon, protection of riparian areas at the northern end of Sycamore Canyon, and the expansion of the Goodding RNA. These actions have contributed to improvement of Sonora chub habitat and perhaps to Gentry indigo bush habitat.

There are several other possible management concerns in the canyon. The cutting of the border fence with Mexico continues to be an issue. Until this is resolved, cattle from Mexico will continue to enter Sycamore Canyon and graze on Gentry indigo bush. Undocumented migrants crossing the border into the United States also use this area. Human traffic associated with this activity in the canyon bottom may directly trample plants and is likely contributing to Gentry indigo bush habitat degradation.

The amount of sediment and surface runoff within the Sycamore Canyon watershed may continue to affect Gentry indigo bush. The plants have adaptations for persisting with flood events, but it is unknown when the threshold will be crossed, in terms of the magnitude of flows, that will likely remove the population from the canyon. Recovery may be hampered by the seemingly low reproductive potential of this plant. The Forest Service maintains a road density of 0.58 km/km 2 (0.93 mile/mi 2 ) within the watershed and considers these roads to be “a primary source of erosion and sediment” (Lefevre 2000). The Forest Service has no plans to address the effects of roads in Sycamore Canyon watershed; thus there will continue to be sediment deposition and scouring in and along the stream channel.

Sycamore Canyon is a very popular place for recreation. The petitioners cite trampling and compaction of soils from foot traffic as negatively affecting the Gentry indigo bush in Sycamore Canyon. Gentry indigo bush plants grow on the floodplain terraces where hikers often create trails to avoid walking in the stream (Falk, pers. observation). Due to its narrow width, there are limited terraces in the canyon intensifying the use of Gentry indigo bush habitat as places to create trails. These activities degrade habitat and may reduce the areas occupied by Gentry indigo bush. We know of no plan to address the effects of recreation in this area.

The Forest Service has not systematically monitored the species on its land. While lack of monitoring is not a direct threat to the species, it does prevent us from adequately assessing the current status of the population. New information would greatly enhance our status review.

Two locations have been noted in Mexico. We have no information on population status or threats at these sites. We are not aware of any protection for these areas. As such, until further information is provided, we do not know how the Mexican populations will contribute to the status of this species.

Factor E: Other natural or manmade factors affecting its continued existence.

With respect to Factor E, the petitioners cite the rarity of the species and the possible extinction risk associated with stochastic events such as drought, flood, and wildfire. This species would most likely be negatively affected by environmental stochasticity (variations over time in the population's operational environment) and natural catastrophes (Menges 1991). We agree, based both on information presented by the petitioner and other information in our files. The most likely scenario is that of catastrophic flooding. Increased rainfall combined with an altered hydrograph in Sycamore Canyon may result in the species being washed out. Long-term drought (as the one we are currently in) may affect the species' ability to recover. The combination of small population size, reduced reproductive potential, and isolation makes this species vulnerable to extinction.

On the basis of our review, we find that the petition presents substantial information indicating that listing the Gentry indigo bush may be warranted. The main potential threat to the species appears to be loss of plants and habitat associated with heavy livestock use, an altered hydrograph in Sycamore Canyon, sediment loads in the Sycamore Canyon watershed, and the effects of recreation and other human uses of the drainage. There is also a possible increased risk of extinction associated with small, isolated populations from stochastic events.

We have reviewed the available information to determine if the existing and foreseeable threats pose an emergency. We have determined that an emergency listing is not warranted at this time, because the population has recovered in some degree, the population is within a RNA with some protections, and the potential exists for additional populations in Mexico. However, if at any time we determine that emergency listing of the Gentry indigo bush is warranted, we will seek to initiate an emergency listing.

The petitioners also requested that critical habitat be designated for this species. We always consider the need for critical habitat designation when listing species. If we determine in our 12-month finding that listing the Gentry indigo bush is warranted, we will address the designation of critical habitat in the subsequent proposed rule.

When we make a finding that substantial information is presented to indicate that listing a species may be warranted, we are required to promptly commence a review of the status of the species. To ensure that the status review is complete and based on the best available scientific and commercial information, we are soliciting information on the Gentry indigo bush. We request any additional information, comments, and suggestions from the public, other concerned governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties concerning the status of the Gentry indigo bush. We are seeking information regarding the species' historical and current status and distribution, its biology and ecology, ongoing conservation measures for the species and its habitat, and threats to the species and its habitat, especially where it occurs in Mexico.

If you wish to comment or provide information, you may submit your comments and materials concerning this finding to the Field Supervisor ( see ADDRESSES section).

Our practice is to make comments and materials provided, including names and home addresses of respondents, available for public review during regular business hours. Respondents may request that we withhold a respondent's identity, to the extent allowable by law. If you wish us to withhold your name or address, you must state this request prominently at the beginning of your submission. However, we will not consider anonymous comments. To the extent consistent with applicable law, we will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.

A complete list of all references cited herein is available upon request from the Field Supervisor ( see ADDRESSES section).

The primary author of this document is Mima Falk, Tucson Sub-Office ( see ADDRESSES section).

The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ).

Background

The Preble's was listed as threatened on May 13, 1998 (63 FR 26517). At the time of listing, the primary threat to Preble's was habitat loss and degradation caused by agricultural, residential, commercial, and industrial development. On December 23, 2003, we received two petitions, from Coloradans for Water Conservation and Development and the State of Wyoming's Office of the Governor, to remove Preble's from the Federal List of Threatened and Endangered Wildlife and Plants pursuant to the Act. Both petitions maintain Preble's should be delisted based on “data error” ( i.e. , subsequent investigations show that the best scientific or commercial data available when the species was listed, or the interpretation of such data, were in error) and “taxonomic revision” ( i.e. , Preble's is not a valid subspecies). As explained in our 1996 Petition Management Guidance (Service 1996), subsequent petitions are treated separately only when they are greater in scope than, or broaden the area of review of, the first petition. In this case, as both petitions were almost identical, the State of Wyoming's petition was treated as a comment on the first petition received.

On March 31, 2004, we published a 90-day finding in the Federal Register that the petition presented substantial information to indicate the petitioned action may be warranted (69 FR 16944). Section 4(b)(3)(B) of the Act requires that within 12 months after receiving a petition to revise the Lists of Endangered and Threatened Wildlife and Plants that contains substantial information indicating that the petitioned action may be warranted, the Secretary shall make one of the following findings—(a) The petitioned action is not warranted; (b) the petitioned action is warranted; or (c) the petitioned action is warranted but precluded by pending proposals. Such 12-month findings are to be published promptly in the Federal Register . In accordance with section 4(b)(3)(A) of the Act, we have now completed a review of the best available scientific and commercial information on the species and have reached a determination that the petitioned action is warranted. When the proposed action is warranted, it should be accompanied by, or promptly followed by, a proposed rule to implement the warranted action. In this case, we have combined the 12-month finding and the proposed delisting rule into a single document.

Meadow jumping mice ( Zapus hudsonius ) are small rodents with long tails, large hind feet, and long hind legs. The tail is bicolored, lightly-furred, and typically twice as long as the body. Meadow jumping mice have a distinct, dark, broad stripe on their backs that runs from head to tail and is bordered on either side by gray to orange-brown fur. The underside fur is white and very fine in texture. Total length of an adult meadow jumping mouse is approximately 180 to 250 millimeters (mm) (7 to 10 inches (in)), with the tail comprising 108 to 155 mm (4 to 6 in) of that length (Krutzsch 1954, Fitzgerald et al. 1994).

Across its range, meadow jumping mice typically occur in moist habitats, including low undergrowth consisting of grasses, forbs, or both, in open wet meadows and riparian corridors, or where tall shrubs and low trees provide adequate cover (Krutzsch 1954, Quimby 1951, Armstrong 1972). Meadow jumping mice prefer lowlands with medium to high moisture over drier uplands. Fitzgerald et al. (1994) described meadow jumping mice as most common in wooded areas. Because adequate herbaceous or grassy ground cover is essential for the species, meadow jumping mice in the northern Great Plains are restricted primarily to riparian habitats (Jones et al. 1983).

Meadow jumping mice are primarily nocturnal or crepuscular, but also may be active during the day, when they have been seen moving around or sitting under a shrub (Shenk 1998). These mice are nomadic, and may roam up to 1 kilometer (km) (0.6 mile (mi)) in search of moist habitat. Meadow jumping mice usually move in hops of about 3 to 15 centimeters (cm) (1 to 6 in), but are capable of taking a few long jumps of 60 to 90 cm (2 to 3 feet). Meadow jumping mice, including Preble's, are true hibernators. Preble's usually enter hibernation in September or October and emerge the following May, after a potential hibernation period of 7 or 8 months. Adult Preble's reach weights that enable them to enter hibernation as early as the third week in August, whereas young of the year typically enter hibernation in September and October (Meaney et al. 2003).

Additional species information is available in the May 13, 1998, final rule to list the Preble's as a threatened species (63 FR 26517) and the June 23, 2003, final rule to designate critical habitat for the Preble's (68 FR 37275).

The Preble's is a member of the family Dipodidae (jumping mice) (Holden 1992), which contains four extant genera. Two of these, Zapus and Napaeozapus, are found in North America (Hall 1981, Wilson and Ruff 1999).

In his 1899 study of North American jumping mice, Edward A. Preble concluded there were 10 species in the Zapus genus. According to Preble, meadow jumping mice ( Z. hudsonius ) included five subspecies. Preble classified all specimens of meadow jumping mice from the States of North Dakota, Montana, South Dakota, Wyoming, Nebraska, Colorado, and Missouri as Z. h. campestris.

Krutzsch (1954) revised the taxonomy of the genus after studying morphological characteristics of 3,600 specimens of Zapus. This revision recognized only 3 distinct species of jumping mice; the meadow jumping mouse, the western jumping mouse ( Z. princeps ), and the Pacific jumping mouse ( Z. trinotatus ), comprised of 11, 11, and 4 subspecies, respectively. Krutzsch relegated the majority of species previously recognized by Preble (1899) to subspecific status. Krutzsch based his reduction in the number of distinct species on Mayr's (1942) species concept, which defined species as actual or potential interbreeding individuals or populations that are reproductively isolated from other such groups. Mayr described a subspecies as a geographically localized subdivision of the species, which differs genetically and taxonomically (as illustrated by significant morphological characteristics) from other subdivisions of the species.

Krutzsch retained the name Z. h. campestris, but restricted its use to specimens from the Black Hills and Bear Lodge Mountains of northeastern Wyoming, southwestern South Dakota, and adjacent southeastern Montana. Individuals from North Dakota, and northwestern, central, and eastern South Dakota were classified as the subspecies Z. h. intermedius. Krutzsch described and named Z. h. preblei (Preble's) as separate from Z. h. campestris (Bear Lodge meadow jumping mouse) based on 11 specimens (4 adult and 7 non-adult). Krutzsch stated that although “the specimens of Z. h. preblei are few, the differences between this and neighboring named kinds is considerable.” Krutzsch also commented on the presence of physical habitat barriers and lack of known intergradation between Preble's, known only from eastern Colorado and southeastern Wyoming, and other identified subspecies of the meadow jumping mouse ranging to the east and north. Among recognized subspecies, Krutzsch found that Preble's most closely resembled the Bear Lodge meadow jumping mouse from northeastern Wyoming, but summarized differences in coloration and skull characteristics. Preble's was recognized as one of twelve subspecies of meadow jumping mouse by Hafner et al. (1981).

Jones (1981) examined the morphology of 9,900 Zapus specimens from across North America. Jones concluded that the Pacific jumping mouse was not a valid taxon and suggested reducing the number of species in the genus to two (the western jumping mouse and the meadow jumping mouse). At the subspecific level, Jones concluded that there was “no evidence of any population of Zapus hudsonius being sufficiently isolated or distinct to warrant subspecific status” and “No named subspecies is geographically restricted by a barrier, with the possible exception of Z. h. preblei .” Jones made the statements above based on the subspecies concept proposed by Whitaker (1970) which said—(1) Subspecies must be divided by primary isolating mechanisms that stop or significantly reduce gene flow; (2) in the absence of primary isolating mechanisms, subspecies would still be capable of interbreeding; and (3) the existence of primary isolating mechanisms can be inferred from the genetic distinctness of subspecies, as evidenced by unique characteristics. The conclusions reached by Jones have not been incorporated into the formal taxonomy of the genus. These conclusions were never published in a peer-reviewed journal; therefore, the scientific community never formally assessed the validity of this work.

In a report to the Colorado Division of Wildlife, Riggs et al. (1997) analyzed mitochondrial deoxyribonucleic acid (mtDNA) from tissue samples of meadow jumping mice and western jumping mice from Colorado and Wyoming and concluded that Preble's mice form a homogenous group recognizably distinct from nearby populations of meadow jumping mice and adjacent species of the genus. Hafner (1997) reviewed the Riggs study, inspected Riggs' original sequence data, and agreed that Preble's form a relatively homogenous group compared to neighboring subspecies. Ramey et al. (2004) reviewed the Riggs study, and criticized the methodology for not rigorously testing whether Preble's formed a monophyletic group ( i.e. , a grouping of evolutionary lineages that includes a common ancestor and all descendent lineages) and for not providing statistical tests to support their conclusions.

Ramey et al. (2004) (a revision of Ramey et al. 2003 considered in the 90-day finding) examined four lines of evidence to test the taxonomic validity of the Preble's as described by Krutzsch (1954). First, they performed a phylogenetic and population genetic analysis of mtDNA sequence data, primarily from museum specimens of four subspecies of meadow jumping mouse, including Preble's (58 specimens), the Bear Lodge meadow jumping mouse (33 specimens), Zapus hudsonius luteus (32 specimens), and Z. h. pallidus (35 specimens). Ramey et al. used Z. princeps princeps (7 specimens), Z. p. idahoensis (3 specimens), and Z. p. utahensis (7 specimens) as the outgroup for the phylogenetic analysis. An outgroup is an organism from a distantly related group that shares a common ancestor with the group in question. Using an analysis of molecular variance (AMOVA), Ramey et al. examined genetic variation in a hierarchical fashion within and between Preble's and Bear Lodge meadow jumping mouse. This comparison revealed most of the genetic variation was within subspecies (64 percent) rather than among these subspecies (37 percent). Additionally, they found that all 4 identified Preble's mtDNA haplotypes were included within the 16 identified Bear Lodge meadow jumping mouse mtDNA haplotypes. However, Ramey et al. also documented a high level of mtDNA variation (nucleotide diversity) in Bear Lodge meadow jumping mouse compared to Preble's, “making these subspecies seem more diverged than the shared mtDNA haplotypes indicate.”

Ramey et al. (2004) believed these findings are consistent with a founder effect. A founder effect is the establishment of a new population by a few original founders that carry only a small fraction of the total genetic variation of the parental population. A population may be descended from a small number of ancestral individuals for two reasons—(1) A small number of individuals may colonize a place previously uninhabited by their species; or (2) an established population may fluctuate in size such that a population passes through a “bottleneck” in which only a few individuals survive, and later expands again under more favorable conditions. Ramey et al. speculated that there were population “bottlenecks” during southward colonization into what is now Preble's range. Based on their results and analysis, the authors concluded that Preble's is a less genetically diverse population of Bear Lodge meadow jumping mouse.

Second, Ramey et al. (2004) completed a morphometric analysis on skull measurements of the Preble's and the Bear Lodge meadow jumping mouse (testing the same nine skull measurements that Krutzsch (1954) used to support his taxonomic assertions). Four repeated measurements were taken with digital calipers and recorded to the nearest hundredth of a millimeter as per Conner and Shenk (2003). Ramey et al. employed the following criterion for testing distinguishability between subspecies—≥ 90 percent of specimens correctly classified at a posterior probability of p> 0.95. Employing this method, the analysis of Ramey et al. found no basis for the quantitative morphological skull differences Krutzsch noted. While significant difference was observed between the Preble's and the Bear Lodge meadow jumping mouse in three of the nine skull measurements, two of these three differences did not correspond to those Krutzsch described.

Third, Ramey et al. (2004) performed a critical review of Krutzsch's qualitative description of Preble's as a subspecies. The authors found that the skull shape and pelage differences noted by Krutzsch (1954) had no quantitative basis and considered them “unsupported opinion.”

Fourth, Ramey et al. (2004) discussed ecological distinctiveness as an integral part of the species concept presented by Crandall et al. (2000). Crandall et al. (2000) proposed a hypothesis-testing approach describing management units based upon genetic and ecological distinctiveness. Crandall et al. advocated that ecological differences among populations can drive adaptive change that would not be detected by molecular markers alone. Ramey et al. also examined the literature for evidence of ecological differences between subspecies. They found no published ecological evidence for discreteness between Preble's and the Bear Lodge meadow jumping mouse. Ramey et al. asserts that this lack of published information supports his conclusion that these subspecies should be synonymized.

Ramey et al. (2004) concluded that, based on the lack of genetic, morphological, or published ecological evidence for genetic distinctiveness between the Preble's and the Bear Lodge meadow jumping mouse, these subspecies should be synonymized (considered the same subspecies) as Zapus hudsonius campestris. This taxonomic revision has not yet been published in a peer-reviewed journal and has not been incorporated into the formal taxonomy of the genus.

The Ramey et al. (2004) report has undergone peer review. The Colorado Division of Wildlife solicited and received nine peer reviews of this report and transmitted those reviews to the Service on April 24, 2004. We solicited additional peer reviews focused on specific aspects of the report from seven scientists. In addition to the report, the Service sent reviewers maps of the meadow jumping mouse range; the May 13, 1998, final rule to list Preble's (63 FR 26517); and a November 5, 2003, working draft of a recovery plan for Preble's. Five peer reviewers responded to Service questions and provided comments on the study. Reviews from all 14 peer reviewers ranged from strong support of the work, to pointed criticism of study design, data interpretation, and conclusions. These reviews are available in their entirety at http://mountain-prairie.fws.gov/preble/. Because Ramey et al. 2004 remains unpublished, these peer reviews were crucial in our consideration of what constitutes the best scientific and commercial information available regarding the taxonomy of this subspecies. A summary of the peer reviews and other public comments follow below.

Of the 14 peer reviews, 5 supported the Ramey et al. (2004) study and its conclusions (Robert Bradley, Texas Tech, in litt. 2004; Keith Crandall, Brigham Young University, in litt. 2004; David Hafner, New Mexico Museum of Natural History, in litt. 2004; Brett Riddle, University of Nevada, Las Vegas, in litt. 2004; Lisette Waits, University of Idaho, in litt. 2004), 3 leaned toward support of the study and its conclusions (Carron Meaney, Meaney and Associates, Boulder, Colorado, in litt. 2004; Jeffry Mitton, University of Colorado, Boulder, in litt. 2004; Jack Sites, Brigham Young University, in litt. 2004), and 6 were generally critical of the study or skeptical of its conclusions (David Armstrong, University of Colorado, Boulder, in litt. 2004; Mary Ashley, University of Illinois at Chicago, in litt. 2004; Mary Conner, Utah State University, in litt. 2004; Marlis Douglas, Colorado State University, in litt. 2004; Sara Oyler-McCance, University of Denver and the Rocky Mountain Center for Conservation Genetics and Systematics, in litt. 2004; Gary White, Colorado State University, in litt. 2004). However, some of these peer reviewers were also supportive of portions of the study.

Those who supported the conclusions of Ramey et al. (2004) generally accepted most aspects of the report. Bradley (in litt. 2004) wrote that Ramey et al. was an “excellent piece of work” on a controversial issue and particularly liked the study design intended to test a series of hypotheses. Bradley thought that the morphological and mtDNA analyses are convincing in that the two taxa actually represent a single taxon. Crandall (in litt. 2004) believed appropriate markers and methods were used and that the conclusions were “right on”; he found the study impressive in its inclusion of both genetic and morphometric data coupled with an evaluation of previous work. Crandall thought the conclusions are well founded and well supported by the data. Hafner (in litt. 2004) noted that Ramey et al. employed appropriate methods, markers, evidence, and interpretation to convincingly argue that Preble's is not a valid subspecies, but that the synonymized entity remains imperiled. Riddle (in litt. 2004) thought that the data supported a lack of substantial morphological, ecological, and molecular differentiation between these two subspecies. Riddle thought this was a common outcome of molecular analyses of taxonomic subspecies within close geographic proximity, that are ecologically similar, and appear to have no surmounting biogeographic obstacles to movements across the landscape (from a historical perspective). While he did not support retaining Preble's and Bear Lodge meadow jumping mouse as separate taxonomic units, Riddle was concerned for the conservation status of the synonymized taxonomic unit. Waits (in litt. 2004) believed that the authors provided convincing evidence for synonymizing because the hypothesis testing did not reject the hypothesis that the two are essentially the same morphologically and genetically. Meaney (in litt. 2004) did not take a definitive position on the results or conclusions of Ramey et al. , but called the paper overall good science. Mitton (in litt. 2004) noted that appropriate markers and methods were used and suggested he would support the conclusions of Ramey et al. if the grounds for the removal of certain specimens could be validated. Jack Sites (Brigham Young University, in litt. 2004) viewed Ramey et al. as tentative support for synonymizing and suggested synonymizing if subsequent study validated their results.

Of the reviewers critical of the report, most felt its conclusion that Preble's and the Bear Lodge meadow jumping mouse should be synonymized went beyond the data presented. Armstrong (in litt. 2004) saw the report as “a small piece of the puzzle of geographic variation in the meadow jumping mouse” and suggested that “a restricted, targeted investigation of this kind, laid out in an unpublished report, is not an appropriate vehicle for a taxonomic decision of the kind proposed.” Ashley (in litt. 2004) suggested that more data is needed to synonymize. Conner (in litt. 2004) thought that ecological, behavioral, physiological, and geographic factors needed to be included in any testing of Preble's taxonomy. Douglas (in litt. 2004) stated, “Limitations of the data affect resolution of analysis and thus render the results inconclusive” and that “the overall tone of the manuscript lacks objectivity.” Oyler-McCance (in litt. 2004) had “ no problem with the study itself except for some of the conclusions made by the authors,” and did not feel that this study resolves the taxonomic question. Regarding the report's conclusion, White (in litt. 2004) stated, “ the report should conclude that no differences were detected given the measurements conducted, and should not jump to the unfounded conclusion that the two subspecies are identical.”

Several reviewers discussed the use of mtDNA to delineate valid subspecies used by Ramey et al. (2004). For example, Douglas (in litt. 2004) noted that a timespan of greater than 10,000 years is the limit for mtDNA resolution and that taxa more recently diverged would be difficult to detect via mtDNA analysis. Oyler-McCance (in litt. 2004) noted that the genetic data gathered by Ramey et al. is from only one locus, and that this locus represents only the maternal history, which could very well differ from other genetic material of the subspecies. Oyler-McCance, Sites (in litt. 2004) and Riddle discussed the potential for introgression of Bear Lodge meadow jumping mouse mtDNA on the Preble's nuclear background, but Riddle thought it unlikely to have happened simultaneously across the entire range of Preble's, given the generally fragmented nature of Preble's populations.

Another issue bought up by several reviewers was use of “ancient DNA” from museum specimens. Ramey et al. (2004) noted that since museum collections are accessible for future scientific research, reliance on museum specimens means the study is repeatable. Douglas (in litt. 2004) noted that the use of museum specimens allows for specimens to be obtained from a large geographic area and for a study to be completed in short order. However, Douglas also detailed numerous problems with the use of ancient DNA such as the quality of DNA extracted from museum specimens is often inferior, making amplification difficult or the contamination of high-quality DNA from other samples possible.

Another issue associated with the use of ancient DNA is the size of DNA fragments ( i.e. , the number of base pairs). Ramey et al. (2004) analyzed 355 base pairs of sequence data. Douglas (in litt. 2004) noted that this is a marginal data set for population level analyses; as a general rule, at least 1,000 base pairs should be evaluated to substantiate findings and make results conclusive. Although a larger number of base pairs is desirable (Courtney et al. 2004), mtDNA studies often utilize less than 1,000 base pairs (Riggs et al. 1997; Haig et al. 2004).

Other issues were brought up by the reviewers. Douglas (in litt. 2004) also questioned the use of western jumping mouse as Ramey et al. 's outgroup. Several reviewers discussed Ramey et al. 's removal of a number of specimens from their study and suggested their presumed identities be verified through further testing (Armstrong in litt. 2004; Douglas in litt. 2004; Mitton in litt. 2004; Hafner in litt. 2004). Ashley (in litt. 2004), Oyler-McCance (in litt. 2004), and Douglas (in litt. 2004) questioned Ramey et al. 's reliance on an AMOVA to evaluate variation within and among groups. Specifically, the standard for a subspecies employed by Ramey et al. requires greater diversity among accepted subspecies than within them. Ashley (in litt. 2004) also questioned the use of variation within and among groups as a “very strict criterion” to judge a subspecies” validity, and suggested that based on haplotype frequencies the two subspecies are “genetically quite distinct.”

A number of the reviewers detailed the strengths and the weaknesses of the morphological portion of the analysis performed in Ramey et al. (2004). For example, Meaney (in litt. 2004) found that the morphometric data and analysis appear solid. Ashley (in litt. 2004) and Sites (in litt. 2004) noted Ramey et al. 's strongest case for synonymizing comes from the morphological aspects of the report, rather than the genetics analysis.

Many of the reviewers, such as Waits (in litt. 2004), Meaney (in litt. 2004) and Riddle (in litt. 2004) discussed the conclusion by Ramey et al. (2004) regarding ecological discreteness. Ashley (in litt. 2004), Conner (in litt. 2004), Douglas (in litt. 2004), and Oyler-McCance (in litt. 2004) said it was not clear that there had been any evaluation of ecological difference and noted that the authors gave no references, making it difficult to judge how thoroughly they looked. Conner and Oyler-McCance also questioned what variables were compared. In Crandall's view (in litt. 2004), clear ecological differences over evolutionary time would result in morphologic differences; as none were found, a lack of ecological differences can be inferred. Overall, Crandall and Mitton (in litt. 2004) agreed with Ramey et al. (2004) that there did not appear to be clear ecological distinctions between Preble's and closely related taxa that justify conservation for Preble's.

On March 31, 2004, we published a notice in the Federal Register (69 FR 16944) that the petition received on December 17, 2003, to delist Preble's presented substantial information to indicate the petitioned action may be warranted. As part of this Notice, we requested information on the genetic and taxonomic classification of Preble's, the abundance and distribution of the subspecies, and the threats faced by Preble's in relation to the five listing factors (as defined in section 4(a)(1) of the Act). In response, we received nine letters containing comments and information from government agencies (Colorado Department of Natural Resources, El Paso Board of County Commissioners, Douglas County Open Space and Natural Resources), organizations (Colorado Farm Bureau, Center for Native Ecosystems, Coloradans for Water Conservation and Development), and individuals. As noted above, 14 peer reviews of Ramey et al. 2004a were received and considered. For a full discussion of this issue, read the Peer Review section of this notice above.

Colorado Department of Natural Resources called for the immediate delisting of the Preble's based on genetic studies by Ramey et al. (2004a) and increases in known occurrence. They contended that essential conservation efforts to protect the Preble's in Colorado would be carried on by State and local governments regardless of Federal listing status. They also provided extensive documentation of State and county efforts to conserve habitats within the Preble's range in Colorado.

The El Paso County Board of County Commissioners supported delisting, described their efforts toward development of a regional Habitat Conservation Plan, and suggested that a decision to delist would save the county and its citizens time and money. The Douglas County Division of Open Space and Natural Resources described habitat conditions and conservation measures employed in Douglas County, and commented that Douglas County populations should not be considered a distinct population segment of wider jumping mouse distribution.

In a single letter representing their combined comments, the Center for Native Ecosystems, Biodiversity Conservation Alliance, Native Ecosystem Council, and Forest Guardians opposed delisting of the Preble's. They discussed abundance and distribution of Preble's, genetics and taxonomic classification, threats to Preble's, and the status of the Bear Lodge meadow jumping mouse. The Colorado Farm Bureau supported delisting of Preble's and commented on the lack of threats to Preble's from agricultural activities. The Coloradans for Water Conservation and Development, one of the petitioners, provided comments that largely paralleled the contentions made in their petition. Three private individuals provided comments—One contending that delisting based on available genetic studies was premature; one largely criticizing the original listing; and one discussing threats to Preble's in the broader context of human impacts to the environment.

We have carefully assessed the best scientific and commercial information regarding the taxonomy and biology of this species. We reviewed the petition and associated documents, information available in our files, and other published and unpublished information submitted to us during the public comment period following our 90-day petition finding. We reviewed new data and other information on the genetics, taxonomy, life history, ecology, status, and existing threats to Preble's.

At this time, we view Ramey et al. (2004) as the best scientific and commercial information available regarding the taxonomy of the Preble's and Bear Lodge meadow jumping mouse. Within the next year, the Service expects additional genetics information ( i.e. , nuclear DNA results) that will verify (or refute) the conclusions of Ramey et al. The peer reviews of the report suggested a majority (8 out of 14) either support or lean toward supporting the taxonomic conclusions of Ramey et al. (2004). Therefore, on the basis of the lack of distinct genetic and morphologic differences between the two putative subspecies, we conclude that Preble's is likely not a valid subspecies of meadow jumping mice ( Zapus hudsonius ). Based on the above conclusion, we find that the petitioned action is warranted because the original listing of Preble's as a subspecies of meadow jumping mouse was in error. Accordingly, we propose to delist or remove Preble's from the List of Endangered and Threatened Wildlife in 50 CFR 17.11.

The Service will evaluate threats to the combined entity ( Zapus hudsonius campestris ) in all or a significant portion of its range before this rule is finalized. This finding and proposed rule do not attempt to analyze threats to the combined entity, Z. h. campestris. We are initiating a status review and will analyze the threats to the species in the final rule. Finally, as discussed in the 90-day finding (69 FR 16944), the Service will analyze whether the Preble's portion of Z. h. campestris qualifies as a Distinct Population Segment in need of protection before this rule is finalized.

At this time, the Service is seeking additional information to perform this analysis. We currently have only limited information regarding the distribution, life history, ecology, and habitat of Bear Lodge meadow jumping mouse portion of Z. h. campestris, and no information regarding its abundance or population trends. While we have some information regarding land management and habitat conditions in the Black Hills, we lack information connecting these habitat conditions to population effects. Therefore, we are seeking additional information and data on meadow jumping mouse in the vicinity of the Black Hills. More detail of what is sought is outlined in the Public Comments Solicited section of this proposed notice and rule.

In making this determination we have followed the procedures set forth in section 4(a)(1) of the Act and regulations implementing the listing provisions of the Act (50 CFR part 424).

Critical habitat is defined in section 3 of the Act as—(i) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species, and (II) that may require special management considerations or protection, and (ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of the Act, upon a determination by the Secretary of the Department of the Interior (Secretary) that such areas are essential for the conservation of the species. “Conservation” means the use of all methods and procedures needed to bring the species to the point at which listing under the Act is no longer necessary.

Critical habitat was designated for the Preble's on June 23, 2003 (68 FR 37275). The designation included eight habitat units totaling approximately 12,632 hectares (31,222 acres) found along 578.1 km (359.2 mi) of rivers and streams in eastern Colorado and in southeastern Wyoming. The designation includes river and stream reaches and adjacent areas in the North Platte River and South Platte River drainages. By removing the Preble's from the List of Endangered and Threatened Wildlife, this proposal, if finalized, will eliminate all currently designated critical habitat for the species.

Section 9 of the Act prohibits take of endangered wildlife. The Act defines take to mean harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or to attempt to engage in any such conduct. However, the Act also provides for the authorization of take and exceptions to the take prohibitions. Take of listed species by non-Federal property owners can be permitted through the process set forth in section 10 of the Act. For federally funded or permitted activities, take of listed species may be allowed through the consultation process of section 7 of the Act. While section 9 of the Act establishes prohibitions applicable to endangered species, the Service has issued regulations (50 CFR 17.31) applying those same prohibitions to threatened wildlife. These regulations may be tailored for a particular threatened species through promulgation of a special rule under section 4(d) of the Act. When a special rule has been established for a threatened species, the general regulations for some section 9 prohibitions do not apply to that species, and the special rule contains the prohibitions, and exemptions, necessary and advisable to conserve that species.

On May 22, 2001, the Service adopted special regulations governing take of the threatened Preble's (66 FR 28125). The special regulations provide exemption from take provisions under section 9 of the Act for certain activities related to rodent control, ongoing agricultural activities, landscape maintenance, and existing uses of water. On October 1, 2002, the Service amended those regulations to provide exemptions for certain activities related to noxious weed control and ongoing ditch maintenance activities (67 FR 61531). On February 24, 2004, the Service proposed permanent extension of the amended special regulations (69 FR 8359). On May 20, 2004, the Service extended the special regulations permanently (69 FR 29101). The current special regulations at 50 CFR 17.40(l) will be eliminated by this proposal, if finalized, because Preble's will no longer be protected by the Act.

Section 4(g)(1) of the Act requires us to monitor a species for at least 5 years after it is delisted based on recovery. Because Preble's is being delisted due to new information that demonstrates that the original classification was in error, rather than due to recovery, the Act does not require us to monitor this animal species following its delisting.

We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, we solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule. Generally, we seek information, data, and comments concerning the taxonomic classification and conservation status of Preble's and Bear Lodge meadow jumping mouse. More specifically, we seek data from any systematic surveys for Bear Lodge meadow jumping mouse, as well as any studies that may show population size or trends. We request quantitative information regarding the life history, ecology, and habitat use of Bear Lodge meadow jumping mouse, as well as information regarding the applicability of information relevant to other subspecies. We solicit information on the threats faced by the Bear Lodge meadow jumping mouse and Preble's in relation to the five listing factors (as defined in section 4(a)(1) of the Act). We seek information regarding the effects of current land management on population distribution and abundance of Bear Lodge meadow jumping mouse. And finally, we seek information regarding the possibility of contact and interaction between Bear Lodge meadow jumping mouse and adjacent subspecies of meadow jumping mouse ( i.e. , Zapus hudsonius intermedius and Z. h. pallidus ) or other information informing a Distinct Population Segment analysis.

Submit comments as indicated under ADDRESSES . If you wish to submit comments by e-mail, please avoid the use of special characters and any form of encryption. Please also include your name and return address in your e-mail message.

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and other information received, as well as supporting information used to write this rule, will be available for public inspection, by appointment, during normal business hours at the above address. In making a final decision on this proposal, we will take into consideration the comments and any additional information we receive. Such communications may lead to a final regulation that differs from this proposal.

The Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days of the date of publication of the proposal. Such requests must be made in writing and addressed to the Field Supervisor, Colorado Field Office, Ecological Services, 755 Parfet Street, Suite 361, Lakewood, Colorado 80215.

In accordance with our policy published on July 1, 1994 (59 FR 34270), we will solicit the expert opinions of at least three appropriate and independent specialists for peer review of this proposed rule. The purpose of such review is to ensure that decisions are based on scientifically sound data, assumptions, and analyses. We will send peer reviewers copies of this proposed rule immediately following publication in the Federal Register . We will invite peer reviewers to comment, during the public comment period, on the specific assumptions and conclusions regarding the proposed delisting of this species. We will summarize the opinions of these reviewers in the final decision document, and we will consider their input as part of our process of making a final decision on the proposal.

Office of Management and Budget (OMB) regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ), require that interested members of the public and affected agencies have an opportunity to comment on agency information collection and recordkeeping activities (5 CFR 1320.8(d)). The OMB regulations at 5 CFR 1320.3(c) define a collection of information as the obtaining of information by or for an agency by means of identical questions posed to, or identical reporting, recordkeeping, or disclosure requirements imposed on, 10 or more persons. Furthermore, 5 CFR 1320.3(c)(4) specifies that “ten or more persons” refers to the persons to whom a collection of information is addressed by the agency within any 12-month period. This rule does not include any collections of information that require approval by OMB under the Paperwork Reduction Act.

The Service has determined that Environmental Assessments and Environmental Impact Statements, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Act. A notice outlining the Service's reasons for this determination was published in the Federal Register on October 25, 1983 (48 FR 49244).

A complete list of all references cited herein is available upon request from the Colorado Field Office, U.S. Fish and Wildlife Service (see ADDRESSES ).

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