The Commission is proposing changes to its rules to implement section 601 of Pub. L. 110-81, 121 Stat. 735, the “Honest Leadership and Open Government Act of 2007,” signed September 14, 2007. The new law amended the Federal Election Campaign Act of 1971, as amended (2 U.S.C. 431 et seq. ) (“the Act”) by restricting, and in some cases prohibiting, the expenditure of campaign funds by candidates for Federal office for non-commercial travel aboard aircraft. See 2 U.S.C. 439a(c) (henceforth referred to as “new 2 U.S.C. 439a(c)” or “the new law”).

The Commission proposes to implement these new provisions by adding new section 11 CFR 113.5 to Part 113, which governs the expenditure of campaign funds by candidates for Federal office and their authorized political committees. In addition, the Commission is proposing conforming revisions to 11 CFR 100.93, which provides an exception to the definition of “contribution” for non-commercial travel aboard aircraft by, or on behalf of, Federal candidates and political committees, if the candidates and political committees reimburse the service providers at specified rates. With respect to the scope of the proposed changes, the Commission presents two alternatives. Under Alternative 1, the proposed changes would also affect travel by other persons, such as a staff member of a political party committee, separate segregated fund (“SSF”), or nonconnected political committee, if they are not traveling on behalf of a specific candidate. Under Alternative 2, the proposed changes would affect only candidates for Federal office and those traveling on behalf of a candidate for Federal office and his or her authorized committee. The proposed changes would not alter the Commission's treatment of travel by means of transportation other than aircraft, or on travel aboard commercial airliners or charter flights.

In addition, Congress defined the term “Leadership PAC” in section 204(8)(B) of Public Law 110-81. This type of political committee is subject to certain restrictions under the provisions of new 2 U.S.C. 439a(c), and is also subject to certain requirements set forth in another section of Public Law 110-81 pertaining to the practice of “bundling” contributions. See section 204 of Public Law 110-81. The Commission is therefore proposing that the term be defined in the Commission's regulations at 11 CFR 100.5(e) (examples of “political committees”). 1

The Act defines a “contribution” to include “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office.” 2 U.S.C. 431(8)(A)(i); see also 11 CFR 100.52(a). The phrase “anything of value” encompasses “the provision of any goods or services without charge or at a charge that is less than the usual and normal charge for such goods or services.” 11 CFR 100.52(d)(1). When goods or services are provided at less than the usual and normal charge, “the amount of the in-kind contribution is the difference between the usual and normal charge for the goods or services at the time of the contribution and the amount charged the political committee.” Id .

As a result, candidates who travel aboard a commercial airliner or other conveyance for which a fee is normally charged must pay the normal and usual charge for that service in order to avoid receiving an in-kind contribution from the person providing the travel service. Such in-kind contributions would be prohibited if provided by certain entities, including corporations, labor organizations, Federal contractors, and foreign nationals. See 2 U.S.C. 441b, 441c, and 441e; 11 CFR 110.20, 114.2(b), and 115.2. Even where the in-kind contributions are not prohibited, they would be subject to the contribution limits in the Act and Commission regulations. See 2 U.S.C. 441a through 441k; 11 CFR Parts 110, 114, and 115.

The normal and usual charge for travel aboard a commercial airliner is the publicly available price for a ticket, and the normal and usual charge for a chartered jet is the publicly available charter or lease rate. The normal and usual charge for travel aboard a non-commercial flight, however, may not be as apparent. For example, there is generally not a ticket price for a seat aboard a corporate jet that is operated exclusively for the private travel of the corporation's executives and their guests. Because candidates for Federal office have traveled in the past on these privately operated flights, the Commission has provided specific guidance in its regulations regarding the rate of reimbursement that candidates and others must pay to avoid receiving an in-kind contribution for travel aboard such flights.

On December 15, 2003, the Commission promulgated final rules adding 11 CFR 100.93. See Final Rules and Explanation and Justification for Travel on Behalf of Candidates and Political Committees , 68 FR 69,583 (Dec. 15, 2003) (“2003 E&J”). Those final rules established an exception from the definition of contribution for payments at specified rates for non-commercial travel in connection with a Federal election. The payment required for non-commercial air travel by “campaign travelers”—a term that includes individuals traveling in connection with elections for Federal office on behalf of candidates or political committees, and members of the news media traveling with a candidate—depends on whether the travel is between cities served by regularly scheduled commercial airline service, and whether that service is available at a first-class or coach rate. See 11 CFR 100.93(a)(3)(i) and 100.93(c). If travel between the origin and destination cities is regularly served by commercial first-class airline service, then a first-class rate applies. 11 CFR 100.93(c)(1). If such travel is served at both origin and destination by coach-class commercial service and the origin city is not served by first-class service, then a coach-class rate applies. 11 CFR 100.93(c)(2). If either the origin or the destination city is not served by commercial airline service, then the rate is the normal and usual charter fare for a comparable airplane sufficient in size to accommodate all campaign travelers. 11 CFR 100.93(c)(3). The same rates apply to travel on an airplane provided by a government entity, unless the travel is to or from a military base or other relatively publicly inaccessible location. 2 The candidate or political committee responsible for the reimbursement must pay the service provider within seven business days of the trip. 11 CFR 100.93(c).

Candidates for President of the United States may elect to receive matching funds from the Federal government to contest their primary elections and presidential nominees may elect to receive public funding to contest the general election. In both cases, the candidates must agree, among other things, to use the public funds they receive solely for “qualified campaign expenses” and not to exceed specified expenditure limits. 2 U.S.C. 441a(b)(1)(A) and (B), 26 U.S.C. 9004(c)(1), 9038(b)(2).

The Commission has promulgated separate regulations at 11 CFR 9004.7(b)(5)(i) and (v), (b)(8), and 9034.7(b)(5)(i) and (v) and (b)(8), setting forth the appropriate reimbursement rates that publicly funded candidates must use for campaign-related travel on non-commercial transportation. While 11 CFR 100.93 is focused on the potential underpayment for travel resulting in a contribution, 11 CFR 9004.7 and 9034.7 are focused on the appropriate use of public funds, and thus on whether, and to what extent, expenses for campaign-related travel constitute qualified campaign expenses for which the candidate may use public funds. The rates and recordkeeping requirements for presidential and vice-presidential candidates accepting public funds are the same as those in 11 CFR 100.93 and are mainly set forth through cross-references to 11 CFR 100.93.

New 2 U.S.C. 439a(c) prohibits House, Senate, and presidential candidates from making any expenditure for non-commercial travel on aircraft except at specified rates and subject to certain conditions. An “expenditure” includes any payment by any person “made for the purpose of influencing any election for Federal office.” 2 U.S.C. 431(9)(A)(i). Like the current regulations at 11 CFR 100.93, the new law focuses on the appropriate reimbursement rates for non-commercial travel. Travel on commercial flights is still governed by the current requirements for reimbursement at the normal and usual charge. The new law, however, directly limits expenditures by a candidate, candidate's authorized committee, or a leadership PAC, rather than merely specifying how to avoid the receipt of an in-kind contribution as in 11 CFR 100.93.

The new law's rates and conditions under which candidates may spend campaign funds for aircraft travel differ depending on the office sought. Presidential and Senate candidates may pay for their pro rata share of the fair market value of a flight, which is determined by dividing the fair market value of the normal and usual charter fare or rental charge for a comparable plane of comparable size by the number of candidates on board the plane. 2 U.S.C. 439a(c)(1). The authorized committees and leadership PACs of House candidates are, however, generally prohibited from using any campaign funds to pay for non-commercial flights, except for flights on aircraft operated by a Federal or State government entity. 2 U.S.C. 439a(c)(2). Aircraft owned by candidates or their immediate family members are exempt from the prohibitions and rate requirements described above. 2 U.S.C. 439a(c)(3).

The term “Leadership PAC” is defined in section 204(a) of Public Law 110-81 (2 U.S.C. 434(i)(8)(B)) as “a political committee that is directly or indirectly established, financed, maintained or controlled by [a] candidate [for Federal office] or [an] individual [holding Federal office] but which is not an authorized committee of the candidate or individual and which is not affiliated with an authorized committee of the candidate or individual, except that such term does not include a political committee of a political party.” The term “PAC” is an acronym for “political action committee,” which is a term generally used to refer to all political committees other than authorized committees and committees of a political party. 3

The new definition of leadership PAC is relevant to two areas of the new law that fall within the Commission's purview: (1) The new restrictions on candidate travel that would be implemented through both proposed sections 11 CFR 100.93 and 113.5, and (2) the disclosure requirements in Section 204 of the new law for contributions bundled by lobbyists. In the provision relevant to this rulemaking, the new law generally prohibits “candidates for election for the office of Representative in, or Delegate or Resident Commissioner to, the Congress, an authorized committee and a leadership PAC ” from making expenditures for non-commercial air travel. Public Law 110-81, section 601(a) (codified at 2 U.S.C 439a(c)(2)) (emphasis added).

The Commission proposes to incorporate a definition of “leadership PAC” into 11 CFR 100.5, which is the general definition of “political committee.” Specifically, “leadership PAC” would be added to the list of different types of political committees in 11 CFR 100.5(e), with the new term added at 11 CFR 100.5(e)(6). The proposed definition mirrors the definition in the new law.

The Commission proposes to incorporate the definition of “leadership PAC” into the general definition section in 11 CFR Part 100, rather than within the travel rules themselves, to promote consistency and economy within the structure of its regulations.

The definition will impact several sections of the Commission's regulations, including proposed 11 CFR 100.93, 11 CFR 113.5, and the new bundling regulations the Commission intends to promulgate in a separate rulemaking. The Commission seeks comments on the content and placement of this new definition.

The majority of the Commission's current guidance regarding non-commercial air travel is provided in 11 CFR 100.93, which provides an exception to the definition of “contribution” for non-commercial travel if the service provider is reimbursed for the travel at the specified rates. Several of the reimbursement rates permitted under current 11 CFR 100.93 are inconsistent with the new statutory requirements. For example, the statute requires a candidate for President or U.S. Senate to reimburse the service provider at the comparable charter rate, whereas current 11 CFR 100.93 allows reimbursement at the rate of the first class or coach airfare for campaign travel between two cities served by regularly scheduled commercial airline service. Therefore, the Commission is proposing conforming changes and clarifications in 11 CFR 100.93.

The Commission wishes to clarify that, although it is proposing changes to only some of the provisions in 11 CFR 100.93, it may make further revisions to this section in its final rules, in response to any public comments and additional information that it may receive regarding the proposed rules. The Commission therefore invites comments on the entirety of 11 CFR 100.93 and is opening the entire section for comments through this Notice of Proposed Rulemaking. Commenters favoring retention of current provisions of 11 CFR 100.93 should submit comments to that effect. Conversely, those preferring additional changes to 11 CFR 100.93 beyond those proposed should submit comments to that effect. In particular, the Commission seeks comments on the extent to which new 2 U.S.C. 439a(c) should be implemented solely through revisions to 11 CFR 100.93, rather than through the addition of 11 CFR 113.5.

New 2 U.S.C. 439a specifies that “a candidate for election for Federal office * * * or any authorized committee of such a candidate, may not make any expenditure for a flight on an aircraft unless—* * *” 2 U.S.C. 439a(c)(1) (emphasis added). Given the inclusion of authorized committees in this language, the proposed rule, consistent with the current rule, would apply to the same range of individuals covered by the term “campaign traveler” in the current rule. Campaign traveler is defined in part as “any individual traveling in connection with an election for Federal office on behalf of a candidate.” 11 CFR 100.93(3)(i)(A). In other words, the proposed rule would apply to travel by candidates themselves, and also those traveling on behalf of candidates or their authorized committees, such as campaign staff. See proposed 11 CFR 100.93(c)(1).

This interpretation is also consistent with the personal use prohibitions set out by Congress in 2 U.S.C. 439a(b) and the Commission's regulatory interpretation of that section, which apply to personal use by “any person.” See, e.g. , 11 CFR 113.1(g) (defining personal use as “any use of funds in a campaign account of a present or former candidate to fulfill a commitment, obligation or expense of any person that would exist irrespective of the candidate's campaign or duties as a Federal officeholder”) (emphasis added); see also Explanation and Justification for final rules regarding Expenditures; Reports by Political Committees; Personal Use of Campaign Funds, 60 FR 7862, 7864 (Feb. 9, 1995) (“Section 439a states that no campaign funds ‘may be converted by any person to any personal use.' ”). Thus, any use of campaign funds that would exist irrespective of the campaign or the duties of a Federal officeholder is personal use under current Commission regulations, regardless of whether the beneficiary is the candidate, a family member of the candidate, or some other person.

Moreover, the Commission notes that Congress, in its amendments to the Senate rules, set out an approach to reimbursement for non-campaign travel that includes all Congressional staff, not just the Federal officeholders themselves. That amendment requires reimbursement for non-commercial travel aboard aircraft at the normal and usual charter rate for a comparable aircraft of comparable size, “as determined by dividing such cost by the number of Members, officers, or employees of Congress on the flight.” Public Law 110-81, Section 544(c)(1), amending Paragraph 1(c)(1) of rule XXXV of the Standing Rules of the Senate (emphasis added).

The Commission seeks comments on this proposed interpretation of the new law. Is there any evidence that suggests that Congress intended to exclude campaign staff, or others traveling on the candidate's behalf, from the general scope of the rule?

A “campaign traveler” is defined as “[a]ny individual traveling in connection with an election for Federal office on behalf of a candidate or political committee” and “[a]ny member of the news media traveling with a candidate.” 11 CFR 100.93(a)(3)(i). The Commission proposes to add “Any candidate for Federal office or” at the beginning of that definition to clarify that a candidate himself or herself would be included within the definition of “campaign traveler.” The Commission seeks comments on this proposed clarification and whether any additional changes to the definition would be appropriate.

The Commission's current regulations distinguish between commercial and non-commercial air travel based on the certification system of the Federal Aviation Administration (FAA). Specifically, the Commission's rules in 11 CFR 100.93 apply to all airplanes not licensed by the FAA to operate for compensation or hire under 14 CFR parts 121, 129, or 135. 11 CFR 100.93(a)(1)(i).

The new law's restrictions on expenditures for air travel by presidential and U.S. Senate candidates are focused on the FAA's certification and safety requirements, but do not reference specific FAA regulatory provisions. In order to simplify and align the Commission's regulations with the new statutory language, the Commission is proposing to replace its reliance on specific FAA regulatory provisions with the new terms “commercial travel” and “non-commercial travel.” The definition of “commercial travel” would follow the new statutory language: travel aboard an aircraft “operated by an air carrier or commercial operator certificated by the Federal Aviation Administration if the flight is required to be conducted under air carrier safety rules, or, in the case of travel which is abroad, by an air carrier or commercial operator certificated by an appropriate foreign civil aviation authority if the flight is required to be conducted under air carrier safety rules.” Proposed 11 CFR 100.93(a)(3)(iv). Conversely, the proposed definition of “non-commercial air travel” would encompass travel not included in the definition of “commercial travel.” Proposed 11 CFR 100.93(a)(3)(v).

The Commission seeks comments on these proposed definitions. Is there any difference between the universe of aircraft encompassed by the new term “non-commercial travel” and the aircraft included in current 11 CFR 100.93(c) (“an airplane not licensed by the Federal Aviation Administration to operate for compensation or hire under 14 CFR parts 121, 129, or 135”)? Would additional guidance in the form of references to FAA regulatory provisions be helpful in discerning what aircraft qualify as “non-commercial travel,” or is the proposed language sufficiently clear? In addition, the Commission seeks comments on whether additional explanation should be provided to address flights conducted in foreign countries and, if so, what it should be.

The Commission also seeks comments on whether the definitions of “commercial travel” and “non-commercial travel” should specifically address more complex multiple ownership or leasing arrangements, such as arrangements in which some of the owners of an aircraft are commercial operators certificated by the FAA but others are not.

New 2 U.S.C. 439a(c)(1)(B) requires candidates for President, Vice President, and U.S. Senate to pay their “pro rata share of the fair market value” of non-commercial flights aboard aircraft. The pro rata share is “determined by dividing the fair market value of the normal and usual charter fare or rental charge for a comparable plane of comparable size by the number of candidates on the flight.” Id. Because the statutory language is specific that the “number of candidates on the flight” determines the “pro rata share,” the Commission proposes to define “pro rata share of the fair market value of a flight” based solely on the number of candidates on the flight, regardless of whether there are other campaign travelers or passengers aboard. Moreover, because the statutory language applies to expenditures made not only by candidates, but also by authorized committees, the Commission proposes to define “pro rata share” based on the number of candidates represented on a flight. See proposed 11 CFR 100.93(c)(1) and (3). A candidate is represented on a flight if a person is traveling on behalf of that candidate, the candidate's authorized committee, or the candidate's leadership PAC. 4 See proposed 11 CFR 100.93(c)(1). This reimbursement rate does not apply to travel aboard government aircraft or aircraft owned by a candidate or a member of candidate's immediate family, which are covered under proposed section 100.93(e) and (g), respectively, and discussed below. See subsections F and G of this section. This reimbursement rate also would not apply when a candidate or representative of the candidate is traveling on behalf of another committee (such as a political party committee), rather than on behalf of the candidate's own campaign. Reimbursement for a candidate's travel on behalf of another committee is the responsibility of the committee on whose behalf the travel occurs, at the appropriate reimbursement rate for that committee as set forth in proposed 11 CFR 100.93(c).

Candidate A, Candidate B, and Candidate B's campaign manager travel on a plane on behalf of their respective campaigns, along with PAC Representative P traveling on behalf of the PAC. The pro rata share of the fair market value of the flight would be determined by dividing the normal and usual charter rate for the plane by two because there are two candidates represented on the flight (Candidate A and B). Each candidate, or the candidate's authorized committee, would therefore be required to pay 50% of the charter rate to avoid receiving an in-kind contribution from the non-commercial aircraft's owner. Because the full costs of the flight would be reimbursed by the candidate travelers ( i.e. , Candidate A and Candidate B), and the candidate committees would fully compensate the aircraft's owner for the costs of the flight, PAC Representative P's travel would not need to be reimbursed. The Commission invites comment on whether this result—PAC Representative P traveling without paying fair market value for the cost associated with her travel—should be treated as an in-kind contribution to the PAC from one or more of the candidates paying for the cost of the flight. If so, what would the value be? If the value of the travel by a non-candidate traveler is a reportable expenditure by one or more of the candidates when the non-candidate traveler is the representative of a political committee, should the expenditure also be a reportable expenditure if the non-candidate traveler is not a political committee representative? Does it matter whether the non-candidate traveler is traveling at the invitation of one of the candidates or at the invitation of the service provider?

Repayment under the proposed rule would not vary based on the number of non-campaign travelers on the plane. For example, Candidate A, Candidate B, Candidate B's campaign manager and PAC Representative P travel on a twenty-seat plane with six other passengers that are not campaign travelers. Candidate A and Candidate B would still be required to pay 50% each of the entire normal and usual charter fare or rental charge for a “comparable plane” seating twenty passengers. Because the candidate committees would fully compensate the aircraft's owner for the costs of the flight, PAC Representative P and the six additional travelers would not be required to provide reimbursement.

As an alternative, the Commission proposes requiring reimbursement based on the number of represented committees of any type, rather than the number of represented candidates or candidate committees. The Commission proposes two variations of this alternative.

(a) For example, Candidate A, Candidate B, and Candidate B's campaign manager travel on a plane on behalf of their respective campaigns, along with PAC Representative P traveling on behalf of the PAC. The pro rata share of the fair market value of the flight would be determined by dividing the normal and usual charter rate for the plane by three because there are three represented committees on the flight (Candidate A, Candidate B, and PAC). Each committee would be required to pay 33% of the charter rate to avoid receiving an in-kind contribution from the aircraft's owner.

(b) Using the same hypothetical situation set forth above, PAC Representative P would then have the option of paying either 33% of the calculated charter rate, or the amount that would be required under current 11 CFR 100.93.

As an alternative, the Commission proposes requiring reimbursement only for the portion of the normal and usual charter rate that reflects the number of candidate representatives as a percentage of all passengers on the aircraft.

For example, Candidate A, Candidate B, and Candidate B's campaign manager travel on a plane on behalf of their respective campaigns, along with PAC Representative P traveling on behalf of the PAC. The pro rata share of the fair market value of the flight would be determined by dividing the normal and usual charter rate for the plane by four because there are four passengers on the flight. Each passenger would therefore be required to pay 1/4 , or 25%, of the charter rate to avoid receiving a contribution. Candidate A and PAC, with one passenger each, would pay 25% each, while Candidate B, with two passengers would be responsible for 50% of the charter rate.

Under this alternative, the repayment would also vary based on the number of non-campaign travelers on the plane. For example, Candidate A, Candidate B, Candidate B's campaign manager, and PAC Representative P travel on a twenty-seat plane with six other passengers who are not candidates or are not traveling on behalf of candidates. Because Candidate A was only one passenger among ten, Candidate A would be required to pay 10% of the normal and usual charter fare or rental charge for a “comparable plane” seating twenty passengers. Candidate B, with two passengers, would pay 20%, and PAC, with one passenger, would pay 10%.

As a further alternative, the Commission proposes to follow the approach in its current regulations and permit reimbursement at the normal and usual charter rate or rental charge for an aircraft of sufficient size to carry the campaign travelers. See current 11 CFR 100.93(c)(3) (requiring reimbursement of “the normal and usual charter fare or rental charge for a comparable commercial airplane of sufficient size to accommodate all campaign travelers”). Under this approach, the campaign committee would be responsible for paying the normal and usual charter rate for a plane of sufficient size to seat its campaign travelers, rather than the rate for a plane comparable (in terms of seating capacity) to the one flown. For example, Candidate A, Candidate B, Candidate B's campaign manager, and PAC Representative P travel on a twenty-seat plane with six other passengers who are not candidates and are not traveling on behalf of candidates. Under this approach, Candidate A, Candidate B, Candidate B's campaign manager, and PAC Representative P would collectively be responsible for reimbursing the aircraft's owner an amount equivalent to the normal and usual charter fare or rental charge for a “comparable plane” that could seat four passengers. Each candidate or committee must pay its pro rata share of that amount.

Under a variation of this alternative, each campaign traveler would be required to pay the normal and usual charter fare or rental charge for a “comparable plane” able to accommodate only himself and those traveling on his behalf. Thus, Candidate A would be required to pay the normal and usual cost of a “comparable plane” that can seat one passenger. Similarly, Candidate B would be required to pay the normal and usual cost of a “comparable plane” that can seat two passengers.

The Commission seeks comments on this approach and the presented alternatives. In addition, the Commission seeks comments on any other calculations that might be more appropriate.

New 2 U.S.C. 439a(c)(2) states that “in the case of a candidate for election for the office of Representative in, or Delegate or Resident Commissioner to, the Congress [hereinafter “House candidates”], an authorized committee and a leadership PAC of the candidate may not make any expenditure” for non-commercial air travel, with exceptions for travel on government airplanes and aircraft owned by the candidate or members of the candidate's immediate family. Both exceptions are discussed below. The effect of this provision is generally to prohibit travel by House candidates on non-commercial aircraft. Proposed 11 CFR 100.93(c)(2)(i) would reflect new 2 U.S.C. 439a(c)(2) by prohibiting expenditures by House candidates for non-commercial travel on behalf of that candidate, the candidate's authorized committee, or the candidate's leadership PAC. The new law expressly applies to expenditures by authorized committees and leadership PACs of House candidates, including expenditures made by the candidates themselves on behalf of their authorized committees. Proposed 11 CFR 100.93(c)(2) would apply not only to House candidates, but also to persons traveling on behalf of such candidate, the candidate's authorized committee, or the candidate's leadership PAC. This prohibition does not apply when the travel would not be considered an expenditure by the candidate, candidate's authorized committee, or candidate's leadership PAC. For example, travel by a House candidate on behalf of a non-House candidate, party committee, or non-candidate committee would be required to be reimbursed by such other committee at the respective rate set forth for travel on behalf of that candidate or committee. The Commission seeks comment on this approach.

The Commission seeks comments on the treatment of House candidate travel in proposed 11 CFR 100.93(c)(2). Should House candidates be permitted to travel on non-commercial aircraft on behalf of their own campaigns if the cost of the travel is provided as a permissible in-kind contribution? For example, if the travel was provided by a permissible source and the costs of the travel were below the contribution limit, should a non-candidate committee be able to reimburse the travel costs as an in-kind contribution to the candidate? The proposed expenditure regulations, discussed below, prohibit such in-kind contributions. See proposed 11 CFR 113.5(b). If in-kind contributions are allowed, at what rate should their value be calculated for reimbursement and reporting purposes?

The Commission proposes two alternatives with respect to non-commercial air travel by non-candidate campaign travelers.

The Commission notes that the non-candidate reimbursement rate is not addressed in new 2 U.S.C. 439a(c). 5 These proposed changes are intended to promote uniformity and simplicity in the regulation, and make the regulation easier to understand. The Commission's long-standing travel regulations addressed travel only by candidates or on behalf of candidates. See former 11 CFR 114.9(e). In 2003, the Commission extended its travel regulations to cover all travel in connection with a Federal election, stating, “By establishing a single rate for travel reimbursement, the new rules will promote greater uniformity among all individuals traveling in connection with a Federal election on behalf of a political committee.”

Against this background, as one alternative, the Commission is proposing changes to the current reimbursement rate for campaign travelers who are not traveling on behalf of candidates. For example, this rate would apply to individuals traveling on behalf of a political party committee, SSF, or nonconnected committee. Under the proposed rule, the provider must be reimbursed at the pro rata share of the fair market value of such travel. Proposed 11 CFR 100.93(c)(3). The pro rata share is based on the number of different committees represented on the flight, and is calculated in the same manner as reimbursement for travel on behalf of Senate, Vice Presidential, or Presidential candidates under proposed 11 CFR 100.93(c)(1). For example, if a non-commercial flight carried two PAC A campaign travelers and one PAC B campaign traveler, each PAC would be responsible for 50% of the fair market value of the flight.

This rate does not apply when the travel is shared with a candidate or person traveling on behalf of a candidate. The Commission is proposing this alternative to avoid permitting outside organizations to subsidize a candidate's travel. Travel on an aircraft that includes a campaign traveler flying on behalf of a candidate, candidate's authorized committee, or candidate's leadership PAC, must be fully reimbursed by that candidate, candidate's committee or, when permissible, the candidate's leadership PAC. No reimbursement would be required by the non-candidate travelers. See proposed 11 CFR 100.93(c)(3). For example, if a non-commercial flight carried two PAC A campaign travelers, one PAC B campaign traveler, and Senator A, traveling on behalf of his or her campaign, Senator A or Senator A's campaign committee would be responsible for the full fair market value of the flight. PAC A and PAC B would not have to reimburse for the flight costs.

The Commission invites comment on whether this result should be treated as an in-kind contribution to the PACs from Senator A. Does it matter whether or not the non-candidate travelers are representatives of political committees? If the value of the travel by the non-candidate travelers is a reportable expenditure by Senator A when the non-candidate travelers are political committee representatives, should the expenditure also be a reportable expenditure if the non-candidate travelers are not political committee representatives? Does it matter whether the non-candidate travelers are traveling at the invitation of Senator A or at the invitation of the service provider?

Under this alternative, the Commission proposes to retain the existing reimbursement rate structure for non-candidate travel. Because non-candidate travel is not addressed in the new law, the existing rate structure would remain the same for all campaign travelers not traveling on behalf of a candidate or that candidate's authorized committee ( i.e. , campaign travelers traveling on behalf of political party committees, SSFs, and other non-authorized committees). The Commission notes that this might result in the service provider being paid more than the fair market value of the flight. Does the possibility of such “overcompensation” to the service provider represent a concern under FECA? And, if so, in what way?

The Commission seeks comment on this approach. Should the Commission interpret the fact that new 2 U.S.C. 439a(c) does not address non-candidate travel as a form of legislative acquiescence to the Commission's current regulations on non-candidate travel reimbursement? Do the first class and coach air fare rates reflect the fair market value of the services provided? Should the Commission adopt a different reimbursement rate for non-candidate travel, such as the per committee or per passenger alternatives discussed above?

Members of the news media “traveling with a candidate” for Federal office are expressly included within the definition of “campaign traveler” in the Commission's current rules. See 11 CFR 100.93(a)(3)(i)(B). The Commission is not proposing changes to this definition. Under the current rules, when a member of the media is traveling with a candidate, that candidate's committee is ultimately responsible for paying the service provider for the full costs of the travel, but may seek reimbursement from the media for the media's portion of the travel expenses. 6 The Commission proposes to revise 11 CFR 100.93(b)(1)(iii) to ensure that members of the media would not be permitted to relieve the candidates with whom they travel from responsibility for paying the service provider the full normal and usual charter rate or rental charge for travel on an aircraft, pursuant to proposed 11 CFR 100.93(c)(1). Members of the media would still be permitted to reimburse the service provider for travel on conveyances other than aircraft. The Commission seeks comments on this approach. Should the Commission instead continue to allow reimbursement from members of the media for travel on aircraft? At what rate should this reimbursement take place, for example, should it be calculated at a portion of the charter rate or at a first class rate?

Security personnel are treated differently under the Commission's current rules. Under the current rules, security personnel are not necessarily considered “campaign travelers,” but could qualify as such depending on the nature of any additional services that they provide a candidate. Compare 11 CFR 100.93(a)(3)(i)(A) with 100.93(c)(3) and (d). For example, if Secret Service personnel travel with a candidate for Federal office to the candidate's fundraiser aboard a government airplane, the candidate's authorized committee would not be required to pay for the Secret Service member's travel under the current rules unless the Secret Service agent otherwise qualified as a campaign traveler or the flight was required to be reimbursed at the usual charter rate. See current 11 CFR 100.93(c)(3) (calculation of the usual charter rate requires “comparable commercial conveyance of sufficient size to accommodate all campaign travelers * * * and security personnel ”) (emphasis added) and 11 CFR 100.93(e)(1)(ii). Committees can then seek reimbursement from the Secret Service for their portion of the travel expenses. See, e.g. , Advisory Opinion 1992-38 (Clinton/Gore) (loan proposal premised on reimbursement from the Secret Service); see also 11 CFR 9004.6 and 9034.6.

Under the proposed rules, when security personnel travel with a candidate or person traveling on behalf of a candidate, that candidate's committee would be responsible for the full costs of the travel. See proposed 11 CFR 100.93(c)(1). However, if the travel occurs on a government aircraft, the security personnel would not be included in the calculation. See proposed 11 CFR 100.93(e)(1). Should the Commission allow reimbursement from security personnel for travel on non-commercial, non-governmental aircraft? At what rate should this reimbursement take place, for example, should it be calculated at a portion of the charter rate or at a first class rate? Under current regulations, how and under what circumstances do committees seek reimbursement for travel expenses from the U.S. Secret Service?

New 2 U.S.C. 439a(c)(1)(B) requires that the candidate or the candidate's authorized committee use the fair market value of a “comparable plane of comparable size” for purposes of calculating the appropriate charter rate. The Commission interprets “comparable size” as an aircraft with similar physical dimensions that is able to carry a similar number of passengers. 7

The Commission interprets “comparable plane” as an aircraft of similar make and model as the airplane that actually makes the trip, with the same amenities as that airplane. This interpretation is consistent with the Commission's current interpretation of a similar term, “comparable commercial airplane,” in the current rules. See 11 CFR 100.93(c)(3); see also proposed 11 CFR 100.93(c)(3)(iii). As explained in the 2003 E&J:

The Commission seeks comments on this approach.

The Commission proposes to continue its policy of promoting equal treatment of travel by publicly financed candidates and presidential or vice-presidential candidates who have not accepted public funds. Therefore, proposed 11 CFR 100.93(c)(1) would apply directly to presidential and vice-presidential candidates who have not accepted public funds, while the proposed revisions to 11 CFR 9004.7 and 9034.7, discussed below, would continue to incorporate the section 100.93 rates by reference and thereby indicate that they also apply to candidates who have accepted public funds. One important distinction, however, is that a presidential candidate accepting public funds for the general election is prohibited from receiving any in-kind contribution from any person, which would include an in-kind contribution of non-commercial air travel.

The Commission seeks comments on the proposed application of the new rules to publicly financed presidential and vice-presidential candidates.

Under new 2 U.S.C. 439a(c), payments by leadership PACs of House candidates are subject to the same restrictions as payments by authorized committees of House candidates. See 2 U.S.C. 439a(c)(2). In contrast, new 2 U.S.C. 439a(c) is silent with respect to leadership PACs of Senate candidates and Federal officeholders with leadership PACs who are also presidential or vice-presidential candidates.

The Commission proposes to apply the new reimbursement rates to travel on behalf of a Senate candidate's leadership PAC. See 11 CFR 100.93(c)(1). The Commission seeks comment on this approach. Alternatively, should the Commission decline to extend the new reimbursement rate structure to travel on behalf of a Senate candidate's leadership PAC because the new law does not explicitly do so?

Candidates for President, Vice-President, and the U.S. Senate must pay their pro rata share of non-commercial travel on aircraft “within a commercially reasonable time frame after the date on which the flight is taken.” 2 U.S.C. 439a(c)(1)(B). Proposed 11 CFR 100.93(c) would define the statutory “commercially reasonable time frame” as a seven-day time frame beginning on the first day of the flight. The proposed approach would be located in the introductory clause of 11 CFR 100.93(c) and thus would be applicable to all payments required under that paragraph. The Commission seeks comment on this approach.

Is seven days a “commercially reasonable time frame” for reimbursement or is it too short a period? Would another time period for reimbursement be more appropriate or reasonable? Should the Commission instead establish the seven-day period (or some other period) as a safe harbor, and consider longer periods on a case-by-case basis to determine if the “commercially reasonable time frame” requirement was satisfied?

The Commission's current rules at 11 CFR 100.93(e) require reimbursement for travel aboard airplanes owned by the Federal government, or by any State or local government entity, at the same rate as travel aboard other airplanes ( i.e. , the rate for a first-class or coach ticket aboard a commercial flight if the travel is between two cities served by regularly scheduled commercial airline service, or the equivalent charter rate if there is no such service between the cities). 8 Non-commercial campaign travel aboard other government conveyances is also required to be reimbursed at the same rate as travel aboard equivalent means of transportation not owned by a government entity. 11 CFR 100.93(e)(2).

New 2 U.S.C. 439a(c) generally prohibits candidates for the U.S. House of Representatives from using campaign funds for non-commercial campaign travel, but provides an exception for travel aboard an aircraft “operated by an entity of the Federal government or the government of any State.” 2 U.S.C. 439a(c)(2)(B). The new law does not specify any particular rate of reimbursement for travel aboard government aircraft, nor does it explicitly require or prohibit reimbursement for such travel. 9

Proposed 11 CFR 100.93(e) would require all campaign travelers, including candidates for Federal office and those traveling on their behalf, who travel on aircraft provided by a Federal or State government entity (including local governments), to reimburse the appropriate government entity for the travel. See proposed 11 CFR 100.93(e). The proposed rules set out two alternative rates of reimbursement for travel by candidates and candidate representatives, and either rate would be acceptable.

The first proposed rate of reimbursement, which would be similar to current 11 CFR 100.93(c)(1), would be the pro rata share per represented candidate of the normal and usual charter fare or rental charge for the flight on a comparable aircraft of sufficient size to accommodate all of the campaign travelers. The pro rata share would be determined by dividing the normal and usual charter fare by the number of different candidates represented on the flight, regardless of the total number of campaign travelers or other passengers. Under this proposal, the “comparable aircraft” used for determining the required reimbursement amount would not be required to accommodate the non-campaign related passengers and equipment aboard the aircraft. For example, if Presidential Candidate A, two campaign staffers traveling on behalf of Presidential Candidate A, two members of the Secret Service, and PAC representative P, travel on a twenty-seat government aircraft, reimbursement would be required at the normal and usual charter rate for comparable aircraft of sufficient size to accommodate four passengers (Presidential Candidate A, his two campaign staffers, and PAC representative P; the two Secret Service agents would not be counted). Presidential Candidate A would pay the full charter rate, and PAC representative P would not be required to reimburse for his or her travel. The Commission seeks comment on this approach. Specifically, do non-candidate campaign travelers use government aircraft when not accompanied by a candidate, or person traveling on behalf of a candidate? At what rate should travel on a government plane that does not include any candidate-related campaign travelers be calculated?

The Commission seeks comments on a variation of this first reimbursement rate, in which Presidential Candidate A and PAC representative P would each be responsible for the full cost of the normal and usual charter rate for an aircraft of sufficient size to accommodate only those campaign travelers who are traveling on their behalf. Under this variation, Presidential Candidate A would pay the normal and usual charter rate for an aircraft capable of accommodating three campaign travelers: Candidate A and his two staffers. PAC representative P would be required to pay only the normal and usual charter rate for an aircraft of sufficient size to carry one passenger.

With respect to campaign travel aboard Air Force One or other government aircraft dedicated to transporting the Vice President, the Speaker of the House of Representatives, or other such officials, the Commission intends that the reimbursement amount under this proposal would be determined with reference to an aircraft of sufficient size to accommodate the campaign travelers, and excluding all non-campaign-related personnel and equipment. The Commission acknowledges that it may be difficult, if not impossible, to apply the “comparable plane of comparable size” standard to circumstances in which the campaign traveler travels exclusively aboard a specially-outfitted, government-owned aircraft by virtue of his or her status as an officeholder. For example, few, if any, aircraft exist with the “same amenities” as Air Force One. See proposed 11 CFR 100.93(e)(1)(i).

The second proposed rate of reimbursement would be the private traveler reimbursement rate per campaign traveler. This rate would be the rate specified by the Federal, State, or local government agency or other government entity for private travel on its aircraft by a member of the public. The Department of Defense, for example, publishes a list of hourly reimbursement rates for both fixed-wing aircraft and helicopters and includes an “All Other User” rate. 10 Using the private traveler reimbursement rate, the reimbursement rate is calculated by dividing the private traveler reimbursement rate by the number of campaign travelers. Reimbursement would not be required for national security staff or other government officials on the flight that are not campaign travelers. The Commission seeks comment on this approach. Should the campaign traveler be permitted to reimburse the government entity at a lower rate specified by the government entity, such as the rate offered by some government agencies to travelers of other government agencies? Should the regulations offer a choice between alternative acceptable valuation methods, or should the Commission adopt a single method of determining the reimbursement rate? The Commission recognizes that campaign travel aboard government conveyances such as Air Force One and Air Force Two present special circumstances. Therefore, the Commission requests comment on how it should address Air Force One and Air Force Two in its regulations.

The proposed rules would not specify a particular time for repayment for travel on government aircraft under either of the alternative rates. Should the Commission require payment within a specific time period, such as seven days, as for travel on other aircraft under proposed 11 CFR 100.93(c)?

The amendments to 2 U.S.C. 439a include an exception for travel aboard aircraft that are “owned or leased” by a candidate or candidate's immediate family member, including an aircraft owned or leased by any entity in which the candidate or a member of the candidate's immediate family “has an ownership interest,” provided that the entity is not a “public corporation” and the use of the aircraft is not “more than the candidate's or immediate family member's proportionate share of ownership allows.” 2 U.S.C. 439a(c)(3)(A). The exception would operate as an exception to all of the restrictions on expenditures for air travel in new 2 U.S.C. 439a(c). See discussion of proposed 11 CFR 113.5. The Commission seeks comment on this approach.

While the new exception relieves the restrictions on expenditures, it does not relieve candidates of the obligation to reimburse the service providers (candidates, members of their family, or entities in which either owns an interest) to avoid receiving an in-kind contribution for the use of the aircraft. See 11 CFR 100.93. Even though a candidate for Federal office may make an unlimited amount of contributions to his or her own campaign, those contributions must be reported by the candidate's authorized committee. 11 11 CFR 110.10; Advisory Opinions 1991-09 (Hoagland), 1990-09 (Mueller), 1985-33 (Collins), 1984-60 (Mulloy). Contributions by all other persons, including immediate family members, are subject to the applicable amount limits and source prohibitions. 11 CFR 110.1 et seq.

The Commission proposes several reimbursement alternatives. Proposed 11 CFR 100.93(g) would require reimbursement for aircraft owned by candidates and their immediate family at the rates set forth in the Commission's existing rules, which would be moved to 11 CFR 100.93(g)(1)(i) through (iii): first-class, coach, or charter rates, depending on whether the origin and destination cities are served by regularly scheduled commercial airline service. The charter rate would be required only if the travel is between two cities not served by regularly scheduled first class or coach commercial airline service.

As an alternative, the Commission proposes that such travel be reimbursed at the actual incremental cost of such travel. For example, in the case of a candidate piloting his or her own aircraft to a campaign event, the rate of reimbursement would be the actual cost of fuel and any incremental costs such as landing fees. Depreciation or the candidate's piloting services would not be included in the reimbursement calculation. However, under this alternative, if a pilot or crew were employed for the flight, the cost of their services would be included in the reimbursement rate. Should reimbursement not be required if the pilot or crew (including family members) are volunteers for the candidate or campaign committee?

In the case of travel on an aircraft that is owned or leased under a shared-ownership or other time-share arrangement, the Commission proposes as an additional alternative that reimbursement be required at the hourly, mileage, or other applicable rate charged the candidate, corporation, or immediate family member for the costs of the travel. For example, if a candidate traveled on an aircraft leased by an immediate family member at a cost of $1,000 per hour, the appropriate reimbursement rate to that family member would be $1,000 per hour.

The Commission seeks comment on the proposed approaches or any other method of calculation. For example, the Commission seeks comment on whether the exception should require reimbursement at all for travel on candidate-owned aircraft. Alternatively, should the Commission require reimbursement at the same reimbursement rate required for all other candidate travel under the proposed regulations, i.e. , the pro rata share of the fair market value of such flight? Moreover, should the Commission allow one or more methods for calculating the appropriate reimbursement rate?

Because the exception in 2 U.S.C. 439a(c)(3) for travel on aircraft owned by candidates or members of their immediate family functions to permit otherwise restricted or prohibited expenditures by candidates and their committees, the Commission proposes to limit the exception to travel by candidates or persons traveling on behalf of candidates. Thus, proposed 11 CFR 100.93(g) would cover travel on an aircraft owned by a candidate, the candidate's immediate family member, or an entity other than a public corporation in which the candidate or immediate family member has an ownership interest. The exception would not, however, be available for other candidates traveling on behalf of their own campaigns. 12 The Commission seeks comment on this approach.

In addition, the exception in new 2 U.S.C. 439a(c)(3) includes several terms warranting clarification. First, the term “ownership interest” is not defined. The Commission proposes to interpret the term “ownership interest” to include fractional ownership, equity, or use arrangements, as well as “time-sharing” arrangements in which the candidate or an immediate family member pays a fee for a specified amount of travel on the aircraft.

The Commission proposes to interpret the term “public corporation” as applying to any corporation with publicly traded shares. Therefore, aircraft owned by privately held corporations without publicly traded shares, partnerships without publicly traded equity interests, limited liability companies without publicly traded shares, and all other entities without publicly traded shares or equity interests would fall within this exception, so long as a candidate or member of the candidate's immediate family owns an equity interest or voting interest in that entity.

The new statutory exception limits a candidate's use of the aircraft to not “more than the candidate's or immediate family member's proportionate share of ownership allows.” 2 U.S.C. 439(c)(3)(A). However, the statute does not specify the exact nature of the relationship between ownership shares and use of the aircraft.

Rather than account for all of the potential ownership structures of an entity that may own or lease an aircraft, the Commission is proposing a simple condition for the exception to apply: unless the candidate or immediate family member is the sole owner of the aircraft, the amount of use of the aircraft to which each ownership share is entitled must be specified in writing prior to the candidate's use of the airplane. As long as the written policy provides a reasonable relationship between the use of the aircraft and the percentage of ownership by the candidate or candidate's immediate family member, the Commission would not delve into the various ownership structures. The Commission requests comments on this proposal. If the candidate's use of the aircraft exceeds his or her proportionate ownership share, how should that excessive use be reimbursed? Should the excessive use be prohibited altogether?

The proposed rules would not specify a particular time for repayment for travel on aircraft owned by a candidate or a member of the candidate's immediate family. Should the Commission require payment within a specific time period, such as seven days, as for travel on other aircraft under proposed 11 CFR 100.93(c)?

In light of the proposed changes to the reimbursement rates required for candidates and candidate representatives, the Commission proposes two revisions to its current recordkeeping requirements for non-commercial travel at 11 CFR 100.93(i), which would be relocated to proposed 11 CFR 100.93(j).

First, although the Commission's current rules permit candidates and persons traveling on their behalf to pay first-class or coach rates for certain flights, candidates and their representatives would be required to pay the normal and usual charter rates under the proposed rules. See proposed 11 CFR 100.93(c)(1) and (2). Accordingly, the Commission proposes to establish a new paragraph in its revised recordkeeping section to specify that candidates, and those paying for travel by candidates and candidate representatives, must follow the current recordkeeping requirements for persons paying the normal and usual charter rate for air travel. See proposed 11 CFR 100.93(j)(3)(i) (referencing the recordkeeping requirements in proposed paragraph (j)(2) of the same section). These requirements are intended to preserve information, such as the tail number of an aircraft and the number of campaign travelers, that would enable the Commission to determine whether the correct amount of reimbursement was provided for specific flights. To avoid any inference that candidates would be permitted to pay the first class or coach rates, proposed paragraphs (j)(1) and (j)(2) would also be revised to expressly provide that candidates and person traveling on behalf of candidates would be governed by paragraph (j)(3), not (j)(1).

Second, the Commission would require that a record of the written agreement required for aircraft owned in part by a candidate for Federal office or a member of his or her immediate family be maintained by the committee. The Commission seeks comment on the appropriate duration of this record retention requirement. See proposed 11 CFR 100.93(j)(3)(ii). Where an aircraft is owned by an entity in which the candidate or a member of the candidate's immediate family owns an interest, this document would be required by proposed 11 CFR 100.93(g) to specify the proportionate use of the aircraft corresponding to the percentage of ownership of the candidate or member of the candidate's immediate family.

The Commission seeks comments on these proposed revisions.

In addition to the proposed revisions to the travel reimbursement regulations at 11 CFR 100.93, the Commission also proposes to add a new section 11 CFR 113.5 to implement the limit on expenditures for non-commercial air travel contained in new 2 U.S.C. 439a(c).

Along with the proposed addition of new 11 CFR 113.5 implementing new 2 U.S.C. 439a(c), the Commission proposes to change the title of Part 113. The current title, “Use of Campaign Accounts for Non-Campaign Purposes,” is insufficiently broad to encompass the subject matter of the proposed rule, which regulates a use of campaign funds for campaign purposes rather than for non-campaign purposes. The Commission proposes instead the broader title, “Permitted and Prohibited Uses of Campaign Accounts,” to capture the content of both the existing regulations in this part and that of the proposed rule.

Proposed 11 CFR 113.5(a)(1) reflects the general prohibition in new 2 U.S.C. 439a(c) on the expenditure of funds by candidates for President, Vice-President or the Senate and their authorized committees and leadership PACs for aircraft flights, except in certain specified situations. The first situation is when air travel is taken on “commercial” flights. See proposed 11 CFR 113.5(a)(1). The second situation is when air travel is taken on “non-commercial” flights and the candidate or his or her authorized committee reimburses the provider of the airplane in the amount of the candidate's pro rata share of the fair market value of the flight within seven days of the flight. See proposed 11 CFR 113.5(a)(2). Proposed 11 CFR 113.5(a)(1) and (2) provide cross-references to definitions of the terms “commercial travel,” “non-commercial travel,” and “pro rata share of the fair market value of the flight” in proposed 11 CFR 100.93(a)(3)(iv), (v) and (vi).

Proposed 11 CFR 113.5(a) includes restrictions on expenditures by leadership PACs of Senate, presidential, and vice-presidential candidates, to conform to the Commission's proposed language in 11 CFR 100.93(c)(1).

The Commission requests comments on all of the above aspects of proposed 11 CFR 113.5(a).

New 2 U.S.C. 439a(c)(2) contains the applicable rule for candidates for election to office in the House of Representatives. Unlike candidates for President, Vice-President, or the U.S. Senate, House candidates, including authorized committees and leadership PACs of such candidates, are prohibited from spending campaign funds on private, non-commercial air travel. Instead, House candidates may spend campaign funds on air travel only when the flight is commercial or when the flight is operated by an entity of the Federal government or of a State government (including local governments). Other than travel permitted under 11 CFR 100.92(g), because House candidates, their authorized committees, and their leadership PACs are prohibited from spending campaign funds on non-commercial travel, the proposed rule also prohibits House candidates from accepting in-kind contributions in the form of non-commercial air travel. Proposed 11 CFR 113.15(b).

Proposed 11 CFR 113.5(b)(1) and (2) implement these provisions. Proposed subparagraph (1) contains the same “commercial exception” as is set forth in proposed 11 CFR 113.5(a)(2). Travel on government-operated aircraft is reflected in proposed subparagraph (2).

The restrictions on expenditures in the amendments to 2 U.S.C. 439a do not apply to travel aboard aircraft that are “owned or leased” by the candidate or the candidate's immediate family member, and aircraft owned or leased by any entity in which the candidate or a member of the candidate's immediate family “has an ownership interest,” provided that the entity is not a “public corporation” and the use of the aircraft is not “more than the candidate's or immediate family member's proportionate share of ownership allows.” 2 U.S.C. 439a(c)(3)(A).

The Commission proposes to implement this exception in proposed 11 CFR 113.5(c). Proposed 11 CFR 113.5(c)(1) contains the exceptions. Proposed 11 CFR 113.5(c)(2) states that candidates and immediate family members will be considered to own or lease aircraft under the conditions described in proposed 11 CFR 100.93(g)(2), namely, when there is an ownership interest in an entity other than a public corporation that owns the aircraft. Proposed 11 CFR 113.5(c)(3) contains a cross-reference to proposed 11 CFR 100.93(g)(3), which defines the term “immediate family member” in accordance with new 2 U.S.C. 439a(c)(3)(B).

Proposed 11 CFR 113.5(d) states that the unreimbursed value of transportation provided to any campaign traveler, as defined in proposed 11 CFR 100.93(a)(3)(i), is an in-kind contribution from the service provider to the candidate or political committee on whose behalf, or with whom, the campaign traveler traveled, and that such contributions are subject to the limits and prohibitions of the Act.

Although new 2 U.S.C. 439a(c) does not amend either the Presidential Election Campaign Fund Act (Fund Act) (26 U.S.C. 9001 et seq. ) or the Presidential Primary Matching Payment Account Act (Matching Payment Act) (26 U.S.C. 9031 et seq. ), the Commission proposes to make certain amendments to its regulations implementing these laws to conform to the changes it proposes to make to 11 CFR 100.93.

Sections 9004.7 and 9034.7 are identically worded regulations promulgated under the authority of the Fund Act and the Matching Payment Act, respectively, and contain cross-references to 11 CFR 100.93. Both regulations prescribe the procedures that publicly funded primary and general election presidential campaigns must follow in attributing their travel expenses to campaign-related and to non-campaign-related activities. The Commission proposes the following technical amendments to conform these regulations to proposed 11 CFR 100.93:

Proposed 11 CFR 9004.7(b)(5)(i), (iii), and (v), and 11 CFR 9004.7(b)(8) replace the word “airplane” with the word “aircraft.” These changes conform the regulations to the scope of new 2 U.S.C. 439a(c) and to proposed 11 CFR 100.93, as well as to proposed 11 CFR 113.5.

Currently, 11 CFR 9004.7(b)(5)(v) and 11 CFR 9034.7(b)(5)(v) require the authorized committees of presidential and vice-presidential candidates to maintain documentation of the lowest unrestricted non-discounted airfare as required in 11 CFR 100.93(i)(1) or (2). Sections 100.93(i)(1) and (2) contain recordkeeping requirements relating to rates of reimbursement prescribed in 11 CFR 100.93(c) and (e). Proposed 11 CFR 100.93 replaces the current reimbursement rate for non-commercial air travel by presidential and vice-presidential candidates with a rate based on the “pro rata share of the fair market value” of the flight and sets out the corresponding recordkeeping requirements in proposed 11 CFR 100.93(j)(3). The Commission proposes to change 11 CFR 9004.7(b)(5)(v) and 11 CFR 9034.7(b)(5)(v) to conform the recordkeeping requirements to those proposed in 11 CFR 100.93(j)(3). The Commission also proposes to make a conforming amendment to the final sentence in this provision, which addresses recordkeeping requirements for travel on other conveyances. Recordkeeping requirements in such cases would be addressed in proposed 11 CFR 100.93(j)(4). Thus, the Commission proposes to require recordkeeping in accordance with proposed 11 CFR 100.93(j)(4).

Sections 9004.7(b)(8) and 9034.7(b)(8) identify the scope of 11 CFR 100.93 in terminology used in current section 100.93. Specifically, the provisions speak in terms of aircraft that are “licensed for compensation or hire” under various FAA certification authorities. The Commission proposes to change this language to conform to the proposed language used in new 2 U.S.C. 439a(c) and in proposed 11 CFR 100.93. Proposed 11 CFR 9004.7(b)(8) and 11 CFR 9034.7(b)(8) state that travel on non-commercial airplanes is governed by 11 CFR 100.93 and that the term “non-commercial” is defined in accordance with proposed section 11 CFR 100.93(a)(3)(v).

The Commission invites comments from the public concerning any of the proposals outlined above. The Commission also invites comments from the public regarding any additional changes that should be made to 11 CFR 100.5(e), 100.93, 113.5, 9004.7(b)(5)(i), (iii), (v) or (b)(8), or 9034.7(b)(5)(i), (iii), (v), or (b)(8).

The Commission certifies that the attached proposed rules, if promulgated, will not have a significant economic impact on a substantial number of small entities. The basis for this certification is that few, if any, small entities would be affected by these final rules, which impose obligations only on Federal candidates, their campaign committees, other individuals traveling in connection with a Federal election, and the political committees on whose behalf this travel is conducted. Federal candidates, their campaign committees, and most political party committees and other political committees entitled to rely on these rules are not small entities. These rules would generally clarify or supplement existing rules and are largely intended to implement a statutory directive and simplify the process of determining reimbursement rates. The rules would not impose compliance costs on any service providers (as defined in the rules) that are small entities so as to cause a significant economic impact. With respect to the determination of the amount of reimbursement for travel, the new rules would merely reflect an extension of existing similar rules. To the extent that operators of air-taxi services or on-demand air charter services are small entities indirectly impacted by these rules, any economic effects would result from the travel choices of individual candidates or other travelers rather than Commission requirements and, in any event, are likely to be less than $100,000,000 per year.

For the reasons set out in the preamble, the Federal Election Commission proposes to amend subchapters A, E, and F of chapter 1 of title 11 of the Code of Federal Regulations as follows:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0075; Directorate Identifier 2007-NM-171-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov ; including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

The Agência Nacional de Aviação Civil (ANAC), which is the airworthiness authority for Brazil, has issued Brazilian Airworthiness Directive 2007-05-02, effective June 6, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

The potential of ignition sources, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. The corrective action is revising the Airworthiness Limitations Section of the Instructions for Continued Airworthiness to incorporate new limitations for fuel tank systems. You may obtain further information by examining the MCAI in the AD docket.

The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83).

Among other actions, SFAR 88 requires certain type design (i.e., type certificate (TC) and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews.

In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: Single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action.

We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.

EMBRAER has issued Temporary Revision No. 22-1 of the EMB-120 Maintenance Review Board Report (MRBR), dated November 18, 2005; and Section 6, Part D, Critical Design Configuration Control Limitation (CDCCL) of the MRBR, dated March 22, 2005. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD.

Based on the service information, we estimate that this proposed AD would affect about 109 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $8,720, or $80 per product.

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 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 this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. 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 and placed it in the AD docket.

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

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0074; Directorate Identifier 2007-NM-151-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83).

Among other actions, SFAR 88 requires certain type design (i.e., type certificate (TC) and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews.

In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: Single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action.

We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.

We have received three reports indicating that operators found shorted wires in the right wheel well and evidence of arcing on the power cables of the auxiliary hydraulic pump, on three McDonnell Douglas Model DC-9-82 (MD-82) airplanes. One incident resulted in a fire in the wheel well. Investigation revealed that damage to the power cables was caused by structural chafing. In addition, SFAR 88 analysis determined that extra protection is required on the wire harness of the auxiliary hydraulic pump where it comes in close proximity to the center fuel tank; Model MD-90-30 airplanes have a similar installation. Boeing analysis also determined that the existing wire harness of the auxiliary hydraulic pump for Model MD-90-30 airplanes is routed within the “tire burst” area. Installing a new and longer wire harness for the auxiliary hydraulic pump and routing it outside of the tire burst area will minimize the possibility of chafing and wire arcing damage. Shorted wires or electrical arcing at the auxiliary hydraulic pump, if not corrected, could result in a fire in the wheel well. A potential ignition source adjacent to the fuel tanks, if not corrected, in combination with flammable fuel vapors could result in a fuel tank explosion and consequent loss of the airplane.

The installation of the auxiliary hydraulic pump wire harness on Model DC-9-82 (MD-82) airplanes is similar to that on the affected Model MD-90-30 airplanes. Therefore, all of these models are subject to the same unsafe condition.

We have reviewed Boeing Alert Service Bulletin MD90-29A021, dated May 15, 2007. The service bulletin describes procedures for replacing the wire harness of the auxiliary hydraulic pump with a new wire harness, and routing the new wire harness outside of the tire burst area. Accomplishing the actions specified in the service information 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. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously.

There are about 110 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 16 airplanes of U.S. registry. The proposed actions would take about 7 work hours per airplane, at an average labor rate of $80 per work hour. Required parts would cost about $3,997 per airplane. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $72,912, or $4,557 per airplane.

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 and placed it in the AD docket. 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:

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2007-28632 and Airspace Docket No. 07-ASW-3) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the Internet at http://www.regulations.gov .

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2007-28632 and Airspace Docket No. 07-ASW-3.” The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov . Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov or the Federal Register 's Web page at http://www.gpoaccess.gov/fr/index.html .

You may review the public docket containing the proposal, any comments received and any final disposition in person at the Docket Management Facility (see ADDRESSES section for address and phone number) between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Central Service Center, Federal Aviation Administration, 2601 Meacham Blvd; Fort Worth, TX 76193-0500.

Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

On January 31, 2007, the U.S. Navy requested that the FAA take action to modify R-3404. The requested action is needed to provide additional airspace to protect nonparticipating aircraft from blast fragments generated during the disposal of a variety of types of ordnance at the Naval Support Activity Crane's (NSA Crane) Demolition Range.

At the request of the U.S. Navy, the FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 73 to modify R-3404. The modification would better center the restricted area over NSA Crane's blast area, enlarge the restricted area from a 1/2-nm radius to a 1-nm radius, increase the ceiling from 2,500 feet MSL to 4,100 feet MSL, and change the name of the using agency from “Commanding Officer, Naval Ammunition Depot, Crane, IN” to “U.S. Navy, Crane Division, Naval Surface Warfare Center tenant of NSA Crane.”

Section 73.34 of Title 14 CFR part 73 was republished in FAA Order 7400.8N, effective February 16, 2007.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify R-3404, Crane, IN., for the protection of nonparticipating aircraft during the disposal of a variety of types of ordnance.

This proposal will be subjected to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 73 as follows:

Salt (sodium chloride) is an essential part of the diet. Both the sodium and chloride ions are required, for example, to maintain extracellular volume and serum osmolality (Ref. 1). Salt is found naturally in foods such as milk and shellfish (Ref. 1). Salt also is added intentionally as a food ingredient for multiple technical effects in foods, e.g., as a seasoning agent and flavor enhancer, a preservative and curing agent, a formulating and processing aid, and a dough conditioner (47 FR 26590, June 18, 1982 (the 1982 policy notice)).

The Dietary Guidelines for Americans, 2005 (Dietary Guidelines) (Ref. 2), a joint publication of the Department of Health and Human Services and the U.S. Department of Agriculture (USDA), forms the basis for the Federal Government's nutrition programs and policies. Chapter 8 of the Dietary Guidelines reports that, on average, the natural salt content of food accounts for only about 10 percent of total intake, while discretionary salt use (i.e., salt added at the table or while cooking) provides another 5 to 10 percent of total intake. Chapter 8 of the Dietary Guidelines also reports that approximately 75 percent of total salt intake is derived from salt added to processed food by manufacturers.

Excessive sodium has been cited by the scientific community as a contributory factor in the development of hypertension and cardiovascular disease (47 FR 26580). In general, there is a dose-dependent relationship between sodium intake and blood pressure that has been observed to occur throughout the range of levels of sodium intake (Ref. 1). Blood pressures among individuals in certain populations (e.g., persons with hypertension, diabetes, kidney disease, older persons, and African Americans) are more responsive to dietary sodium than blood pressures among the general population (Ref. 1). The Dietary Guidelines recommend that the general population consume no more than 2,300 milligrams/day (mg/d) and that persons with hypertension, blacks, and middle-aged and older adults consume no more than 1,500 mg/d (Ref. 2).

The definition of “food additive” in section 201(s) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 321(s)) is a multistep definition that first broadly includes any substance, the intended use of which results or may reasonably be expected to result, directly or indirectly, in its becoming a component or otherwise affecting the characteristics of food. However, the definition then excludes substances that are generally recognized, among experts qualified by scientific training and experience to evaluate their safety as having been adequately shown through scientific procedures (or, in the case of a substance used in food prior to January 1, 1958, through either scientific procedures or through experience based on common use in food) to be safe under the conditions of their intended use. The definition also excludes certain other substances from the definition of food additive. In particular, under section 201(s)(4) of the act, any substance used in accordance with a sanction or approval granted prior to September 6, 1958, under the act, the Poultry Products Inspection Act (21 U.S.C. 451 et seq. ) or the Federal Meat Inspection Act (21 U.S.C. 601 et seq. ) is excluded from the definition of food additive. Under the act, substances that are not food additives are not subject to the requirements in section 409 of the act (21 U.S.C. 348) for premarket review. Prior-sanctioned substances remain subject, however, to the general adulteration provisions in section 402 of the act (21 U.S.C. 342). These provisions prohibit, among other things, the use of added deleterious substances that “may render [the food] injurious to health.”

In the Federal Register of November 20, 1959 (24 FR 9368), FDA clarified the regulatory status of a multitude of food substances that were used in food prior to 1958 and amended its regulations to include an initial list of food substances that, when used for the purposes indicated and in accordance with current good manufacturing practice, are generally recognized as safe (GRAS). This initial list (the “GRAS list”) is currently published in part 182 (21 CFR part 182). Section 182.1(a) provides in part:

In the early 1970s, FDA announced that the agency was conducting a comprehensive study of substances presumed to be GRAS (35 FR 18623, December 8, 1970; and 36 FR 20546; October 23, 1971). FDA also issued several regulations regarding GRAS substances and procedures associated with its comprehensive review of GRAS substances. These regulations are currently in part 170 (21 CFR part 170) and include: (1) Criteria that could be used to establish whether substances presumed to be GRAS should be listed as GRAS, become the subject of a food additive regulation, or be listed in an interim food additive regulation pending completion of additional studies (§ 170.30) (36 FR 12093, June 25, 1971); (2) procedures that the agency could use, on its own initiative, to affirm the GRAS status of substances that were the subject of its comprehensive review and were found to satisfy the established criteria (§ 170.35(a) and (b)) (37 FR 25705, December 2, 1972); and (3) the general process that the agency would use to review ingredients included in the original GRAS list (§ 170.30(e)) (41 FR 53600, December 7, 1976). Under § 170.30(e):

As part of FDA's approach to the comprehensive review of GRAS substances, FDA contracted with the Federation of American Societies for Experimental Biology (FASEB) for a committee of scientific experts to summarize the available scientific literature regarding substances presumed to be GRAS, including salt. FASEB provided FDA with a tentative report containing its findings and recommendations, held public hearings to provide an opportunity for interested persons to submit additional information and to express their views about the tentative report, and then submitted a final report (47 FR 26590).

In the 1982 policy notice, FDA described the uses of salt in food, reviewed the statutory framework for food ingredients, and described its comprehensive review of GRAS substances. FDA also discussed the findings and conclusions in FASEB's final report on salt. The FASEB report recognized that there are many variables and uncertainties in determining an individual's healthy salt intake. However, the FASEB report also raised concerns about salt consumption levels and concluded that:

The FASEB report recommended the development of guidelines for restricting the amount of salt in processed foods and adequate labeling of the salt content of foods.

In the 1982 policy notice, FDA encouraged food manufacturers to reduce voluntarily the amount of added salt and other sodium-containing substances in processed foods and requested comment on this approach. FDA also announced its tentative decision to defer any revision in the regulatory status of salt until the agency could assess the impact in light of proposed sodium labeling regulations that would respond to health concerns about the levels of use of salt in the food supply. We discuss the proposed labeling regulations in section I.A.5 of this document.

In the 1982 policy notice, FDA described evidence that some uses of salt were granted sanction or approval prior to September 6, 1958, and therefore would be excluded from the definition of a food additive under section 201(s)(4) of the act (47 FR 26590). In part, this evidence relates to the inclusion of salt as an ingredient in several food standards issued before September 6, 1958. We discuss food standards in section I.A.4 of this document.

Section 401 of the act (21 U.S.C. 341) gives FDA the authority to issue regulations fixing and establishing food standards, whenever it is the judgment of the Secretary of Health and Human Services that such action will promote honesty and fair dealing in the interest of consumers. Food standards are established to define the basic nature, and describe the essential characteristics, of a food consistent with consumer beliefs and expectations, and to establish its common or usual name. The process to amend existing standards requires either notice and comment rulemaking or formal rulemaking, depending on the specific standard.

Among other things, food standards establish the name of the food and the ingredients that are mandatory (i.e., required ingredients) or permitted (i.e., optional ingredients) in the manufacture of the food. Foods that are marketed under the standardized name must conform to all the requirements of the relevant standard(s) of identity. Conversely, foods that do not meet the requirements of the relevant standard(s) of identity cannot be marketed under the standardized name. Rather, such foods must be named using descriptors that accurately and adequately describe the food and that sufficiently distinguish it from the standardized food. Examples of foods subject to standards of identity include cheeses and related cheese products (part 133 (21 CFR part 133)); bakery products (part 136 (21 CFR part 136)); and cereal flours and related products (part 137 (21 CFR part 137)).

Salt is a required or optional ingredient in many standardized foods. For example, salt is a required ingredient in “self rising flour” (§ 137.180), “self rising white corn meal,” (§ 137.270) and “cheddar cheese” (§ 133.113). In addition, salt is an optional ingredient in bakery products such as “bread, rolls and buns” (§ 136.110) and “dry curd cottage cheese” (§ 133.129). However, such standardized foods do not require a specific amount of salt and, thus, there is flexibility for food companies to lower salt concentrations by adjusting their formulations regarding the amount of salt added in the preparation of these standardized foods. The primary consideration for lowering salt concentrations in standardized foods where it is required is to ensure that the intended technical effect of the salt ingredient is accomplished.

The provisions in § 130.10 (21 CFR 130.10) allow standardized foods to deviate from certain requirements of a standard of identity to make the food eligible to bear a FDA-defined nutrient content claim. (A “nutrient content claim” (defined in section 403(r)(1)(A) of the act (21 U.S.C. 343(r)(1)(A))) is a claim that characterizes the level of a nutrient in a food. We have established regulations implementing section 403(r)(1)(A) of the act with respect to nutrient content claims (§ 101.13 (21 CFR 101.13 and subpart D)).) Under § 130.10, the levels of sodium or salt in standardized foods can be altered to make the food eligible to bear a FDA-defined sodium- or salt-related claim such as “sodium free,” “low sodium,” “reduced sodium,” “salt free,” and “unsalted” (See § 101.61 (21 CFR 101.61)). For example, although the standard of identity for “self rising flour” in § 137.180 requires the addition of salt in the manufacture of a food named “self rising flour,” manufacturers may deviate from this requirement for the specific purpose of making the food eligible for the “unsalted” claim in accordance with the provisions of § 101.61(c)(2). Similarly, other standardized foods can be modified to eliminate or reduce the sodium content of the food to manufacture sodium-free or lower sodium versions of the standardized food, such as “low sodium bread” or “salt free cottage cheese.”

In 1984, as a followup to the 1982 policy notice, FDA established in § 101.13 definitions for terms related to sodium content, e.g., “sodium free,” “low sodium,” and “no added salt” and required that information about sodium be included with other nutritional information wherever it appears on food labels (49 FR 15510, April 18, 1984). FDA later revised and redesignated § 101.13 as nutrient content regulations at §§ 101.56 (21 CFR 101.56) (Nutrient content claims for “light” and “lite”) and 101.61 (Nutrient content claims for the sodium content of food) (58 FR 2302 at 2414 and 2417; January 6, 1993) in response to the Nutrition Labeling and Education Act of 1990 (NLEA). Section 101.61 addresses the use of terms such as “sodium free,” “low sodium,” “reduced sodium,” and “no added salt” (58 FR 2302 at 2417) and § 101.56 addresses the use of the terms “light” and “lite,” including the use of those terms in relation to sodium content (58 FR 2302 at 2414).

FDA also published a number of other labeling regulations in the January 6, 1993 Federal Register in response to NLEA, which bears on how sodium is declared on the label; namely, the agency's revised nutrition labeling regulations that required nutrition labeling of sodium content on virtually all processed food products (§ 101.9(c)(4) (21 CFR 101.9(c)(4))) (58 FR 2079 at 2176) and established a reference value or “Daily Value” (DV) for sodium (§ 101.9(c)(9)) (58 FR 2206 at 2227), and the agency's new regulation (§ 101.74 (21 CFR 101.74)) establishing a health claim regarding low sodium diets and reduced risk of hypertension (58 FR 2820). FDA subsequently established regulations (§ 101.65 (21 CFR 101.65)) requiring that foods labeled as “healthy” contain less than specified amounts of certain food components, including sodium (59 FR 24232, May 10, 1994; amended at 70 FR 56828, September 29, 2005).

In 1978, CSPI submitted a citizen petition requesting that FDA establish limits for sodium in processed foods and reclassify salt as a food additive. In a letter dated August 18, 1982 (Ref. 3), FDA denied the petition, stating that the agency had decided to leave salt in part 182. In 1984, CSPI sought review of FDA's actions in the United States District Court of the District of Columbia. (See Center for Science in the Pub. Interest v. Novitch , Food, Drug, and Cosm. L. Rep. (CCH) 38,275 (No. 83-801) (D.D.C. June 11, 1984)). CSPI argued that FDA's denial of its petition was arbitrary and capricious because it violated FDA's procedures for reviewing substances on the initial GRAS list. CSPI also argued that FDA's decision to defer any change to the GRAS status of salt constituted unreasonable delay in violation of the Administrative Procedures Act (5 U.S.C. 706(1)). The district court concluded that FDA's decision was consistent with its regulations and the act and rejected the argument that FDA had unreasonably delayed reconsideration of the GRAS status of salt. CSPI did not appeal.

In 2005, CSPI sought a writ of mandamus, in the United States Court of Appeals for the District of Columbia, compelling FDA to publish in the Federal Register a proposed rule either affirming or denying the GRAS status of salt and providing an opportunity for comment on the proposal. The court dismissed CSPI's petition for lack of jurisdiction, explaining that CSPI had not sought a remedy from FDA or initiated any proceeding in FDA before resorting to the court. (See In re Center for Science in the Public Interest, 2005 U.S. App. (No. 05-1057) (D.C. Cir. 2005)).

The 1978 CSPI citizen petition also requested that FDA require sodium content labeling on packaged foods and require a special symbol on the labels of high-sodium foods. FDA denied the petition in a letter dated August 18, 1982 (Ref. 3). In that denial letter, FDA considered that mandatory labeling for all processed foods was not justified and noted that the 1982 sodium labeling proposed rule would affect approximately one third of all processed food at that time. In addition, FDA considered a decision regarding special symbols for sodium-containing products to be premature because FDA was researching the utility of such symbols and vignettes.

In 1981, CSPI submitted a citizen petition requesting that FDA require warning labels on packages of salt weighing half an ounce or more. FDA denied that petition in a letter dated October 7, 1982 (Ref. 4). In that denial letter, FDA considered an isolated warning appearing on the label of one class of food products to be inappropriate given that many foods contribute to an individual's sodium intake.

In a citizen petition dated November 8, 2005, CSPI requested that the agency take certain regulatory actions regarding salt. Specifically, CSPI requested that FDA initiate rulemaking to revoke the GRAS status for salt, amend prior sanctions for the use of salt, require food manufacturers to reduce the amount of sodium in all processed foods, require a health message on retail packages of salt one-half ounce or larger, and reduce the DV for sodium from its current level of 2,400 mg/d to 1,500 mg/d. CSPI also requested that FDA take regulatory action to reduce the amount of sodium in processed foods sold directly to restaurants, e.g., by regulating salt in precooked French fries that are purchased by restaurants who then add more salt.

In its petition, CSPI acknowledges that FDA has implemented several labeling requirements related to the sodium content of food through the NLEA as well as other labeling provisions, but asserts that these measures have not done enough to reduce sodium consumption.

CSPI summarizes several published clinical and population-based studies regarding the effect of sodium on blood pressure to support its view that the link between cardiovascular disease and excessive sodium intake has been clearly defined in the scientific community (Refs. 5 to 8). CSPI discusses the potential impact on public health of reductions in blood pressure, citing published estimates that reductions in blood pressure and resultant reductions in the incidence of hypertension would reduce the risk of stroke and heart disease significantly, resulting in fewer deaths from cardiovascular disease (Refs. 9 to 13).

CSPI provides a table summarizing various estimates of the average consumption of sodium collected between 1971 and 2000. CSPI argues that the data show that per capita sodium consumption has increased from 2,800 mg/d in the years 1976-1980 to 3,400 mg/d in the years 1999-2000. (CSPI reports that it derived these estimates from dietary recall surveys conducted by the Centers for Disease Control and Prevention (i.e., the National Health and Nutrition Examination Surveys) and USDA (i.e., the Continuing Survey of Food Intakes of Individuals)). CSPI also cites a clinical study, based on urinary sodium excretion, estimating an average sodium intake of 4,000 mg/d in the United States (Ref. 14). CSPI compares these estimates to the current DV for sodium (i.e., 2,400 mg/d) and to recommendations in the Dietary Guidelines (Ref. 2) for the general population (i.e., no more than 2,300 mg/d) and for persons with hypertension, blacks, and middle-aged and older adults (i.e., no more than 1,500 mg/d). CSPI concludes that the available data demonstrate current intake of sodium is significantly higher than the intake recommended by governmental and scientific organizations around the world.

CSPI discusses the sources of sodium in the food supply, noting that some of the salt in the diet occurs naturally as an inherent component of foods, such as in milk. CSPI acknowledges that one reason for the increased consumption of sodium by the U.S. population in recent years is increased consumption of food in general. However, CSPI notes that the Dietary Guidelines estimate that 75 percent of the sodium in the diet is derived from processed foods. CSPI states that regulatory action to reduce the sodium content of the diet should therefore focus on these foods. CSPI discusses the feasibility of reducing salt levels in foods, stating that reductions can be made without adversely affecting public health or taste. CSPI also describes the activities of the British government's Food Standards Agency, which has introduced voluntary goals for the reduction of sodium in processed foods by food category (Ref. 15).

Based on the health effects of salt cited in its petition, CSPI asserts that salt should no longer be considered “safe.” As a result, CSPI argues that salt should not be considered as a GRAS food ingredient and that prior sanctions for certain uses of salt should be revoked.

CSPI also asserts that FDA has authority to require the labeling requested in its petition under several provisions of the act and FDA's regulations in Title 21 of the Code of Federal Regulations. These include the misbranding provisions of section 403(a) of the act (together with the associated definition in section 201(n) of the act and the associated regulation in 21 CFR 1.21) and the premarket approval provisions of section 409 of the act.

In August 2006, FDA issued a tentative response to CSPI's citizen petition, indicating the need for additional information before a final response could be rendered (Ref. 16).

The purpose of the hearing is for the agency to solicit comment, information and discussion from interested persons on the regulatory status of salt, and food labeling requirements regarding salt and sodium, particularly with respect to the feasibility and potential effectiveness of the regulatory actions requested in CSPI's citizen petition. FDA is aware that other organizations are in general agreement with some of the recommendations in CSPI's petition. For example, at the July 2006 annual meeting of the American Medical Association (AMA), the AMA announced recommendations, in the form of a report issued by the AMA's Council on Science and Health, to the agency echoing many of the regulatory actions suggested by CSPI (Ref. 17). The agency is very much interested in hearing the views of other interested parties, including the AMA.

The agency also is interested in discussions regarding other potential approaches for reducing salt intake. Because FDA has separate plans to issue an advanced notice of proposed rulemaking that would address DVs, including the DV for sodium (Ref. 18), comments regarding the DV for sodium are outside the scope of the public hearing announced in this document.

The scope of this hearing is determined by this notice. FDA invites general comments on the citizen petition (other than the requested actions regarding DVs) as well as comments on the issues and questions listed in section III of this document.

The following issues and questions will be discussed at the public hearing:

Issue 1 : FDA considered revoking the GRAS status of salt and declaring it to be a food additive in 1982, but rejected this approach for several reasons, including the following: (1) The agency would have to establish a limitation for each technical effect for which salt is used in each food category, and it would be extremely difficult to prescribe and enforce “fair use” limitations for salt that would be safe and effective for all consumers (including those hypertensive patients on severe sodium restrictions) given the fact that salt has numerous technical functions in a wide variety of processed foods and may often be used for several different technical effects in a single food and (2) many uses of salt are prior sanctioned and the agency would have to show that salt in food is a “poisonous or deleterious substance” for it to take regulatory action against a prior sanctioned ingredient. Failing to do this, the practical effect of regulating those remaining uses of salt not authorized by prior sanction might be quite small and the issuance and enforcement of limitations for uses of salt would therefore constitute an extraordinary regulatory burden for FDA. These facts and the uncertainty about the precise role of salt as a basic causative factor in essential hypertension left unclear whether the use of salt in a particular food would render that food uniformly injurious to health. Therefore, FDA concluded in 1982 that informative labeling would be more responsive to the health concerns about sodium (47 FR 26590). FDA is not aware of any fundamental changes to these considerations since it published the 1982 policy notice.

Question 1. Could a food additive regulation be constructed to prescribe limitations for uses of salt? If so, how might the regulation be constructed?

Question 2. Would reducing the salt content of food, even in a modest way, impact the safety or quality of various foods given the wide variety of technical functions for which salt is used in food? How feasible would it be to mitigate this impact if true? Could it be mitigated by, for example, the addition of other ingredients?

Question 3. If you agree with the underlying premise of CSPI's petition (i.e., that the sodium content of processed foods should be reduced), but disagree with one or more of the specific actions requested by CSPI, what other actions would you recommend?

Question 4. How could FDA partner with interested stakeholders regarding the development of appropriate recommendations or other information to reduce the salt content of processed foods?

Issue 2 : Food labeling initiatives introduced by FDA during the last 25 years have been designed to provide consumers with more information about the sodium content of foods. For example, our regulations currently require declarative statements on the label about the sodium content of processed food (§ 101.9(c)(4)), define nutrient content claims for foods based on their salt content (§§ 101.61 and 101.56), provide for a health claim regarding low sodium diets and reduced risk of hypertension (§ 101.74), and stipulate maximum sodium concentrations for foods that are to be labeled as “healthy” (§ 101.65(d)(2)). In addition to the goal of providing information to consumers, these labeling initiatives are also intended to encourage food manufacturers to reduce the salt content of foods and to provide incentives to manufacturers to produce lower sodium foods. CSPI argues that these measures have not ultimately served to reduce salt intake and that further, more aggressive regulatory action is needed.

Question 5. How would you describe the effectiveness of the following FDA regulations in reducing salt intake by the public? (1) Declaration of sodium content in the Nutrition Facts panel (§ 101.9(c)); (2) sodium content claims (§§ 101.61 and 101.56); health claims (§ 101.74); and (4) “healthy” claims (§ 101.65(d)(2))? How would you change these labeling requirements to make them more effective?

Question 6. What, if any, data, such as consumer studies, are available regarding the potential for label statements about the health effects of salt to reduce salt intake?

Question 7. To what extent could FDA's labeling policies provide incentives to manufacturers to reduce the salt content of processed foods? For example, would there be an incentive to manufacturers to reduce the salt content of processed foods if FDA used enforcement discretion to permit a claim about a reduction in salt or sodium when that claim does not satisfy the criteria for a defined nutrient content claim? Would there be an incentive to manufacturers to reduce the salt content of processed foods if FDA encouraged the use of health messages to identify products with reduced salt? How would such incentives differ from the incentives provided by currently authorized label statements?

By delegation from the Commissioner of Food and Drugs (the Commissioner) (Staff Manual Guide 1410.21 paragraph 1.f.(5)), the Assistant Commissioner for Policy finds that it is in the public interest to permit persons to present information and views at a public hearing regarding the regulatory framework for salt and sodium, particularly with respect to CSPI's petition to revise the regulatory status of salt and establish food labeling requirements regarding salt and sodium and is announcing that the public hearing will be held in accordance with part 15 (21 CFR part 15). The presiding officer will be the Commissioner or his designee. The presiding officer will be accompanied by a panel of FDA employees with relevant expertise.

Persons who wish to participate in the hearing (either by making a presentation or as a member of the audience) must file a notice of participation (see DATES , ADDRESSES , FOR FURTHER INFORMATION CONTACT , and section V of this document). By delegation from the Commissioner (Staff Manual Guide 1410.21 paragraph 1.f.(5)), the Assistant Commissioner for Policy has determined under § 15.20(c) that advance submissions of oral presentations are necessary for the panel to formulate useful questions to be posed at the hearing under § 15.30(e), and that the submission of a comprehensive outline or summary is an acceptable alternative to the submission of the full text of the oral presentation. For efficiency, we request that individuals and organizations with common interests consolidate their requests for oral presentation and request time for a joint presentation through a single representative. After reviewing the notices of participation and accompanying information, we will schedule each oral presentation and notify each participant of the time allotted to the presenter and the approximate time that the presentation is scheduled to begin. If time permits, we may allow interested persons who attend the hearing but did not submit a notice of participation in advance to make an oral presentation at the conclusion of the hearing. The hearing schedule will be available at the hearing.

After the hearing, the schedule and a list of participants will be placed on file in the Division of Dockets Management (see ADDRESSES ) under the docket number listed in brackets in the heading of this notice.

To ensure timely handling of any mailed notices of participation, written material associated with presentations, or comments, any outer envelope should be clearly marked with the docket number listed in brackets in the heading of this notice along with the statement “Salt and Sodium; Petition to Revise the Regulatory Status of Salt and Establish Food Labeling Requirements Regarding Salt and Sodium; Public Hearing.”

Under § 15.30(f), the hearing is informal, and the rules of evidence do not apply. No participant may interrupt the presentation of another participant. Only the presiding officer and panel members may question any person during or at the conclusion of each presentation.

Public hearings under part 15 are subject to FDA's policy and procedures for electronic media coverage of FDA's public administrative proceedings (part 10 (21 CFR part 10, subpart C)). Under § 10.205, representatives of the electronic media may be permitted, subject to the procedures and limitations in § 10.206, to videotape, film, or otherwise record FDA's public administrative proceedings, including presentations by participants. The hearing will be transcribed as stipulated in § 15.30(b). For additional information about transcripts, see section VII in this document.

Any handicapped persons requiring special accommodations to attend the hearing should direct those needs to the appropriate contact person (see FOR FURTHER INFORMATION CONTACT ).

To the extent that the conditions for the hearing, as described in this notice, conflict with any provisions set out in part 15, this notice acts as a waiver of these provisions as specified in §§ 10.19 and 15.30(h). In particular, § 15.21(a) states that the notice of hearing will provide persons an opportunity to file a written notice of participation with the Division of Dockets Management within a specified period of time. If the public interest requires, e.g., if a hearing is to be conducted within a short period of time, the notice may name a specific FDA employee and telephone number to whom an oral notice of participation may be given. If the public interest requires, the notice may also provide for submitting notices of participation at the time of the hearing. In this document, the conditions for the hearing specify that notices of participation be submitted electronically to an agency Web site, to a contact person who will accept notices of participation by mail, telephone, fax, or e-mail, or in person on the day of the hearing (as space permits). In addition, the conditions for the hearing specify that written material associated with an oral presentation be provided to a contact person who will accept it by mail, fax, or e-mail rather than to the Division of Dockets Management. We are using these procedures to facilitate the exchange of information between participants and the agency. By delegation from the Commissioner (Staff Manual Guide 1410.21 paragraph 1.f.(5)), the Assistant Commissioner for Policy finds under § 10.19 that no participant will be prejudiced, the ends of justice will thereby be served, and the action is in accordance with law if notices of participation are submitted by any of the procedures listed in this notice.

Registration by submission of a notice of participation is necessary to ensure participation and will be accepted on a first-come, first-served basis. Registration begins on October 22, 2007. The notice of participation may be submitted electronically, orally, or by fax, mail, or e-mail (see ADDRESSES and FOR FURTHER INFORMATION CONTACT ). We encourage you to submit your notice of participation electronically. A single copy of any notice of participation is sufficient.

The notice of participation must include your name, title, business affiliation (if applicable), address, telephone number, fax number (if available), and e-mail address (if available). If you wish to request an opportunity to make an oral presentation during the open public comment period of the hearing, your notice of participation also must include the title of your presentation, the sponsor of the oral presentation (e.g., the organization paying travel expenses or fees), if any; and the approximate amount of time requested for the presentation. Presentations will be limited to the questions and subject matter identified in section III of this document and, depending on the number of requests received, we may be obliged to limit the time allotted for each presentation (e.g., 5 minutes each).

Under § 15.20(c), if you request an opportunity to make an oral presentation you must submit your presentation (either as the full text of the presentation, or as a comprehensive outline or summary). You may submit your presentation by e-mail, fax, or mail. A single copy of your presentation is sufficient. See ADDRESSES and FOR FURTHER INFORMATION CONTACT for information on where to send your presentation.

Persons who wish to request an opportunity to make an oral presentation must submit a notice of participation by November 8, 2007, and also must submit either the full text of the oral presentation, or a comprehensive outline or summary of the oral presentation, by November 21, 2007. All other persons wishing to attend the hearing must submit a notice of participation by November 21, 2007. Persons requiring special accommodations due to a disability must submit a notice of participation by November 21, 2007, and should inform the contact person of their request (see FOR FURTHER INFORMATION CONTACT ). Persons wishing to park onsite should inform the contact person of their request by November 26, 2007. Individuals who request an opportunity to make an oral presentation will be notified of the scheduled time for their presentation prior to the hearing.

We will also accept notices of participation onsite on a first-come, first served basis; however, space is limited and registration will be closed when the maximum seating capacity is reached. Requests for an opportunity to make a presentation from individuals or organizations that did not make such a request in advance may be granted if time permits.

Persons who submit a notice of participation in advance of the hearing should check in at the onsite registration desk between 8 a.m. and 9 a.m. Persons who wish to submit a notice of participation onsite on the day of the hearing may do so at the registration desk between 8 a.m. and 9 a.m. We encourage all participants to attend the entire hearing. Because the hearing will be held in a Federal building, hearing participants must present photo identification and plan adequate time to pass through the security system.

All submissions and comments received may be posted without change to http://www.fda.gov/ohrms/dockets/default.htm , including any personal information provided.

Interested persons may submit to the Division of Dockets Management (see ADDRESSES ) written or electronic comments for consideration at or after the hearing in addition to, or in place of, a request for an opportunity to make an oral presentation (see section V of this document). Submit two paper copies of any written comments, except that individuals may submit one copy. Comments are to be identified with the docket number found in brackets in the heading of this document. Received comments may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

Transcripts of the hearing will be available for review at the Division of Dockets Management (see ADDRESSES ) and on the Internet at http://www.fda.gov/ohrms/dockets approximately 30 days after the hearing. You may place orders for copies of the transcript through the Freedom of Information Office (HFI-35), Food and Drug Administration, 5600 Fishers Lane, rm. 6-30, Rockville, MD 20857, at a cost of 10 cents per page.

The following references have been placed on display in the Division of Dockets Management (see ADDRESSES ) and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday. (FDA has verified Web site addresses, but FDA is not responsible for any subsequent changes to the Web sites after this document publishes in the Federal Register .)

Section 4(b)(3)(A) of the Act requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific information to indicate that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files at the time we make the determination. 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.

We base this finding on information provided by the petitioner that we determined to be reliable after reviewing sources referenced in the petition and information available in our files at the time of the petition review. We evaluated that information in accordance with 50 CFR 424.14(b). Our process for making this 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.

On February 22, 1999, we responded to a November 2, 1998, letter from Mr. Ron Sims, Kings County Executive, regarding the status of kokanee in Lake Sammamish. Our response letter questioned whether Mr. Sims' letter was in fact a petition. On March 16, 2000, we received a petition, dated March 15, 2000, from Save Lake Sammamish, Washington Trout, Sierra Club Cascade Chapter, Washington Environmental Council, Friends of the Earth, King County Conservation Voters, and Defenders of Wildlife. The petitioners requested that we emergency list the population of native summer-run (or early-run) kokanee that spawn in Issaquah Creek, a tributary of Lake Sammamish in King County, Washington, as an endangered distinct population segment (DPS) and designate critical habitat under the Act. The petition clearly identified itself as such and provided the names and addresses of the petitioners. We responded in two letters dated April 17, 2000, and November 6, 2000, stating that addressing the petition at that time was not practicable due to our workload addressing court orders and court-approved settlement agreements for other listing actions and that we would address the petition as funding became available. This petition finding fulfills that commitment.

On July 10, 2007, we received a petition to list Lake Sammamish kokanee as threatened or endangered under the Act. We are in the process of analyzing that petition and intend to publish a 90-day finding on that petition in the near future.

The kokanee and the sockeye salmon are two forms of the same species, Oncorhynchus nerka (Order Salmoniformes, Family Salmonidae), that are native to watersheds in the north Pacific from southern Kamchatka to Japan in the western Pacific and from Alaska to the Columbia River in North America (Page and Burr 1991, p. 52; Taylor et al. 1996, pp. 402-403). Adult kokanee look like sockeye salmon, but are generally smaller in size at maturity because they are confined to freshwater environments, which are less productive than the ocean (Gustafson et al. 1997, p. 29). Both sockeye and kokanee turn from silver to bright red during maturation, while the head is olive green and the fins are blackish red (Craig and Foote 2001, p. 381).

Sockeye salmon are anadromous, migrating to the Pacific Ocean following hatching and rearing in freshwater to spend 2 to 3 years in marine waters before returning to freshwater environments to spawn. Kokanee are non-anadromous, spending their entire lives in freshwater habitats (Meehan and Bjorn 1991, pp. 56-57). Kokanee young are spawned in freshwater streams and subsequently migrate to a nursery lake (Burgner 1991, pp. 35-37). Kokanee remain in the lake until maturity and return to natal freshwater streams to spawn and die.

Taylor et al. (1996, pp. 411-414) found multiple episodes of independent divergence between sockeye and kokanee throughout their current range. As ancestral sockeye populations expanded to new river systems, those that could not access the marine environment on a regular basis evolved into the non-anadromous kokanee form. This rapid adaptive evolution happened multiple times such that kokanee populations are genetically more similar to their sympatric (occupying the same geographic area without interbreeding) sockeye populations than kokanee in other river systems (Taylor et al. 1996, pp. 401, 413-414).

Kokanee in the Lake Washington and Lake Sammamish watersheds are separated into three groups: (1) Summer-run, (2) middle-run, and (3) late-run kokanee, based on spawn timing and location (Berge and Higgins 2003, p. 3; Young et al. 2004, p. 66). Summer-run kokanee spawn during late summer (August through September) in Issaquah Creek and are the only run of kokanee known to spawn in that creek (sockeye salmon spawn there in October). Middle-run kokanee spawn in late September through November, primarily in larger Sammamish River tributaries. Late-run kokanee spawn from late fall into winter (October through January) in tributaries of Lake Sammamish. The petition and this petition finding address only the summer-run kokanee in Issaquah Creek.

Berggren (1974, p. 9) and Pfeifer (1995, pp. 8-9 and 21-22) report escapements (the number of fish arriving at a natal stream or river to spawn) of summer-run Issaquah Creek kokanee numbering in the thousands during the 1970s. Since 1980, the escapement of summer-run Issaquah Creek kokanee has plummeted (Berge and Higgins 2003, p. 18). Between 1998 and 2001, only three summer-run kokanee redds (gravel nests of fish eggs) were observed in Issaquah Creek. In July 2001 and 2002, the Washington Department of Fish and Wildlife installed a fish weir across Issaquah Creek in an attempt to capture all migrating kokanee and spawn them in a hatchery for a supplementation program. However, no kokanee were observed or captured in these attempts (WDFW 2002, pp. 5-7).

The petitioners state that the summer-run Issaquah Creek kokanee is a DPS based on their August spawning period, fry emergence timing, coloration at the time of spawning, and genetic distinctness, and asked the Service to emergency list the DPS as endangered. Under the Act, we can consider for listing any species, subspecies, or DPS of any species of vertebrate fish or wildlife that interbreeds when mature, if information is substantial to indicate that such action may be warranted. To implement the measures prescribed by the Act and its Congressional guidance (see Senate Report 151, 96th Congress, 1st Session), we developed a joint policy with the National Oceanic and Atmospheric Administration entitled “Policy Regarding the Recognition of Distinct Vertebrate Population Segments under the Act” (61 FR 4725; February 7, 1996). According to this policy, the three elements considered regarding the potential recognition of a DPS as endangered or threatened are: (1) Discreteness of the population segment in relation to the remainder of the species to which it belongs; (2) significance of the population segment in relation to the remainder of the taxon; and (3) conservation status of the population segment in relation to the Act's standards for listing (i.e., when treated as if it were a species, is the population segment endangered or threatened?). Criteria for all three elements must be satisfied to meet the definition of a DPS. The petition discusses all three factors, but does not explicitly state whether they are evaluating these factors based on the standards set forth in the DPS policy. Following is our evaluation of these elements in relation to the petitioned entity, the summer-run Issaquah Creek kokanee.

Discreteness refers to the separation of a population segment from other members of the taxon based on either: (1) Physical, physiological, ecological, or behavioral factors; or (2) international boundaries that result in significant differences in control of exploitation, habitat management, conservation status, or regulatory mechanisms.

Data contained in the petition, referenced in the petition, and otherwise available to the Service suggests that there is substantial information regarding the behavioral discreteness of summer-run Issaquah Creek kokanee. Timing of spawning and fry emergence for this population is earlier than any other kokanee or sockeye population in the Sammamish Basin (Berggren 1974, pp. 9 and 38; Pfeifer 1992, pp. 117 and 141; Young et al. 2004, p. 65). This difference in spawn timing may result in the reproductive isolation of summer-run kokanee. Based on the physical and behavioral factors referenced in the petition, we find that there is substantial information indicating that summer-run Issaquah Creek kokanee may meet the discreteness element of our DPS policy.

If a population segment is considered discrete under one or more of the conditions listed in the Service's DPS policy, its biological and ecological significance will then be considered. In carrying out this evaluation, the Service considers available scientific evidence of the potential DPS's importance to the taxon to which it belongs. This consideration may include, but is not limited to: (1) Persistence of the discrete population segment in a unique or unusual ecological setting; (2) evidence that loss of the discrete segment would result in a significant gap in the range of the taxon; (3) evidence that the discrete population segment represents the only surviving natural occurrence of the taxon that may be more abundant elsewhere as an introduced population outside of its historic range; or (4) evidence that the discrete segment differs markedly from other populations in its genetic characteristics (61 FR 4721).

The petition states that the summer-run Issaquah Creek kokanee population is significant because it is native to the Sammamish Basin and probably unique among kokanee and sockeye populations in the western United States. The petition points to several studies suggesting this population is genetically distinguishable from a number of other kokanee and sockeye populations. Our analysis of these statements relative to the DPS policy follows.

1. Persistence of the population segment in an ecological setting that is unique for the taxon.

Neither the petition nor information in our files indicates that Issaquah Creek may be a unique or unusual ecological setting for kokanee.

2. Evidence that loss of the population segment would result in a significant gap in the range of taxon.

Neither the petition nor information in our files indicates that loss of summer-run Issaquah Creek kokanee may result in a significant gap in the range of the taxon. According to the petition, Issaquah Creek is one of several tributaries to Lake Sammamish that are occupied by kokanee. There are also kokanee populations in tributaries to the Sammamish River (below Lake Sammamish). Furthermore, the taxon occurs throughout the North Pacific, from southern Kamchatka to Japan in the western Pacific and from Alaska south to the Columbia River system in the eastern Pacific (Page and Burr 1991, p. 52; Taylor et al. 1996, pp. 402-403).

3. Evidence that the population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historical range.

Neither the petition nor information in our files indicates that summer-run Issaquah Creek kokanee may represent the only surviving natural occurrence of this species. The petitioners note that there are at least 78 different kokanee populations from British Columbia, Colorado, Idaho, Montana, Oregon, Utah, and Washington.

4. Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics.

The petition cites several studies indicating that Issaquah Creek kokanee may be genetically differentiated from other kokanee and sockeye populations (Seeb and Wishard 1977, Wishard 1980, Hendry 1995, Hendry et al. 1996). These citations appear to be credible scientific publications and we accept the characterization of these publications provided in the petition for the purpose of this 90-day finding. However, we note that the definition of the term “significant,” as applied in these genetics studies is not the same as its usage when determining whether or not a population meets the significance criterion under the DPS policy. These studies found that there were “significant” differences in allele frequencies (the frequency of one member of a pair or series of genes occupying a specific position on a specific chromosome) between summer-run Issaquah Creek kokanee and the 11 other populations that they studied. However, these “significant” differences in allele frequencies must be placed into the appropriate spatial context of the species' distribution.

The studies cited by the petitioners looked at four kokanee populations, inclusive of Issaquah Creek kokanee, and eight sockeye populations, all from the Lake Washington and Lake Sammamish Basins or hatchery strains. Taylor et al. (1996, pp. 409-410) looked at 750 Oncorhynchus nerka from 24 different populations throughout the range of the species and identified two major genetic groupings, the “northwestern group” (Kamchatka, Alaska, and northwest British Columbia) and the “southern group” (Fraser River and Columbia River systems). Given the large range of the species and the broader genetic relationships described by Taylor et al. (1996, pp. 409-410), the studies referenced by the petitioners looked only at a relatively small subset (both geographically and in total number) of O. nerka , and do not indicate that Issaquah Creek kokanee may have marked genetic differences that may make them significant to the taxon.

Information in our files also fails to indicate that Issaquah Creek kokanee may be markedly genetically divergent or that they may be evolutionarily significant to the taxon. Although Coyle et al. (2001, p. 17) conclude that summer-run Issaquah Creek kokanee have significant genetic differences compared with other conspecific populations of kokanee and sockeye salmon and are a valid DPS, their analysis does not support these findings. The authors acknowledge that genetic differences between early-run Issaquah Creek kokanee and late-run Lake Sammamish kokanee are unknown (but see our discussion of more recent genetic work by Young et al. 2004, below), and the adaptive significance of early-run spawning and early fry emergence are unknown. Further, the authors acknowledged that while this population possesses size and coloration not typical of other kokanee populations in the Sammamish Basin, these are unlikely to be defining characteristics of the population. Although the authors point to the population's adaptation to warmer temperatures and lower stream flows (when compared to other kokanee populations in the Sammamish Basin) as evidence of a distinct adaptation to its environment, they also state that Kootenai Lake kokanee in British Columbia have early-run timing similar to that of summer-run Issaquah Creek kokanee.

Coyle et al. (2001, p. 19) cite a study by Bentzen and Spies (2000, p. 6) as evidence that early-run Issaquah Creek kokanee are significantly different genetically to other conspecific populations of kokanee and sockeye salmon. However, Benzen and Spies (2000, p. 1-9) only studied kokanee populations from Issaquah Creek and Lake Whatcom, did not include other tributaries of Lake Sammamish in their study, and only examined three populations of sockeye salmon. Therefore, Bentzen and Spies' (2000, p. 6) conclusion that Issaquah Creek kokanee are significantly different from other conspecific populations of kokanee is applicable only to the small number of conspecific populations they examined, and only in the context that there were statistically significant differences at microsatellite loci (regions within genes where short sequences of DNA are repeated). An important distinction must be made between a statistically significant difference in allele frequencies using highly variable loci (e.g., microsatellites) and a biologically meaningful difference in genetic markers (Hedrick 1999, p. 316-317). This distinction is important because patterns of adaptive loci may not be correlated with highly variable loci, such as microsatellite loci. It is this high variability in microsatellite loci that enables the detection of very small genetic differences with statistical significance (Hedrick 1999, p. 316-317). While Bentzen and Spies (2000, p. 6) report statistically significant differences in allele frequencies between the two populations of kokanee and three populations of sockeye they studied, they provide no argument for how these differences may be biologically important or how may constitute marked genetic differences that are significant to the taxon.

The most recent genetic work on kokanee in the Sammamish Basin shows that allele frequencies in Issaquah Creek and Lake Sammamish tributaries differ from those of other introduced strains within the basin and also showed greater genetic distance between middle-run and late-run kokanee than the genetic distance between either group and summer-run Issaquah Creek kokanee (Young et al. 2004, pp. 69-70). However, the authors note that the study had a small sample size for summer-run Issaquah Creek kokanee (n=13 individuals) and that inferences regarding the summer-run Issaquah Creek kokanee should be treated with caution. While this study provides some evidence that summer-run Issaquah Creek kokanee may be genetically differentiated from other kokanee in the Lake Washington and Lake Sammamish basins, it did not address whether the summer-run Issaquah Creek kokanee may be markedly genetically divergent from kokanee outside of the Lake Washington and Lake Sammamish basins or how such genetic divergence might be important to the taxon as a whole.

The petition, in combination with information in our files, does not indicate how either the genetic makeup, early spawning, or color variation of summer-run Issaquah Creek kokanee may be significant to the taxon. Therefore, we conclude that the petition does not present substantial information indicating summer-run Issaquah Creek kokanee may meet the significance criterion of our DPS policy. Furthermore, neither the petition nor information in our files presents substantial information that summer-run Issaquah Creek kokanee may represent a significant portion of the species' range. Consequently we conclude that the petition does not present substantial information indicating that summer-run Issaquah Creek kokanee may be a listable entity under the Act.

The petition presented information for the five listing factors in section 4 of the Act in an effort to identify threats that may be leading to the decline of the summer-run Issaquah Creek kokanee. These factors are pertinent only in cases where the organism being proposed for listing may be a listable entity as defined by section 3(15) of the Act. Because the petition does not present substantial information indicating that summer-run Issaquah Creek kokanee may meet the significance criterion for a DPS or may represent a significant portion of the species' range, the five threat factors are not analyzed here.

The Service has reviewed the petition to list the summer-run Issaquah Creek kokanee, the literature cited in the petition that was available to us, and other available scientific literature and information in our files. Based on this review, we find the petition does not present substantial information indicating that the summer-run Issaquah Creek kokanee may meet the criteria for being classified as a DPS under the Act. Although statistically significant differences in allele frequencies have been reported between summer-run Issaquah Creek kokanee and other kokanee and sockeye populations in the Sammamish Basin, information provided in the petition and other available information do not indicate how these differences may be biologically important or how they may constitute marked genetic differences that are significant to the taxon. Therefore, we will not commence a status review in response to this petition.

If you wish to provide information regarding summer-run Issaquah Creek kokanee, you may submit your information or materials to the Manager, Western Washington Fish and Wildlife Office (see ADDRESSES ).

A complete list of all references cited is available upon request from the Western Washington Fish and Wildlife Office (see ADDRESSES ).

The primary authors of this document are Western Washington Fish and Wildlife Office (see ADDRESSES ).

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

Section 4(b)(3)(A) of the 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. Such findings are based on information contained in the petition, supporting information submitted with the petition, and information otherwise readily available in our files at the time we make the determination. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition, and publish a notice of the finding promptly in the Federal Register .

Our standard for substantial scientific or commercial information, as defined by the Code of Federal Regulations (CFR), with regards 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 the petition presents substantial scientific or commercial information, we are required to promptly commence a status review of the species.

We base this finding on information provided by the petitioner that we determined to be reliable after reviewing sources referenced in the petition and information readily available in our files at the time of the petition review. We evaluated this information in accordance with 50 CFR 424.14(b). Our process for making this 90-day finding under section 4(b)(3)(A) of the Act and § 424.14(b) of our regulations is limited to a determination of whether the information in the petition meets the “substantial information” threshold. A substantial finding should be made when the Service deems that adequate and reliable information has been presented that would lead a reasonable person to believe that the petitioned action may be warranted.

On June 15, 2006, we received a petition, dated June 14, 2006 (hereafter cited as ‘Petition’ 2006), from the Western Watersheds Project ('petitioner'). The petitioner requested that mountain whitefish in the Big Lost River, Idaho, be listed as threatened or endangered in accordance with section 4 of the Act. The petitioner also requested that critical habitat be designated. The petition clearly identified itself as such and included the requisite identification information for the petitioner, as required in title 50 of the Code of Federal Regulations (CFR), 424.14(a). In an August 21, 2006 letter to the petitioner, we acknowledged receipt of the petition, and explained that we would not be able to address the petition at that time due to other priorities relating to court orders and litigation settlement agreements. We further indicated that we had reviewed the petition and determined than an emergency listing was not necessary.

The petition requested that we list the mountain whitefish in the Big Lost River of Idaho as a separate species, subspecies, or in the alternative as a distinct population segment. The petition contends that mountain whitefish occupying the Big Lost River have experienced “a population decline and extirpation, and a decreased range.” Threats identified in the Big Lost River include “loss and degradation of habitat due to irrigation diversions, livestock grazing, off-road vehicle use, roads; and predation, competition, and disease from non-native fish species.” The petition asserts that this situation is in contrast to other populations of mountain whitefish in other drainages.

The petition was accompanied by a single document, the “Big Lost River Mountain Whitefish Status Report,” prepared by Ecosystem Sciences Foundation and dated February 2006 (hereafter cited as ‘ESF Status Report 2006’). This report contained information related to the taxonomy, life history, demographics, genetics, habitat, threats, and the past and present distribution of mountain whitefish in the Big Lost River. The petition incorporated by reference any citations used in the ESF Status Report 2006, but did not provide actual copies of those references.

Mountain whitefish ( Prosopium williamsoni ) are members of the Salmonidae family and are found throughout mountainous areas of western North America in Canada and the United States. In the United States, the species is known to occur in the States of Washington, Oregon, Idaho, Wyoming, Montana, Colorado, Utah, Nevada, and California (NatureServe 2007). Mountain whitefish are relatively common and widespread in most river basins in Idaho (American Fisheries Society 2007). Their preferred habitat is cold water streams and lakes in western North America, and typically third or fourth order streams (Van Kirk et al. 2003, p. 8).

While the majority of populations of mountain whitefish occur in riverine environments, some populations are restricted to lakes or isolated sink basins. Mountain whitefish in the Big Lost River reside in a “sink” drainage which was once part of a large Pleistocene lake system that included Lake Terreton (Van Kirk et al. 2003, p. 6). As the waters receded, the Big Lost River and four adjacent drainages lost their surface connection to the Snake River, resulting in five isolated sink drainages in Idaho.

There are additional populations of mountain whitefish that occur in other sink drainages, such as tributaries in the Lahontan Basin in California and Nevada and the Bonneville Basin in Utah. Populations in these basins are similar to the population in the Big Lost River in that all are relict populations of mountain whitefish that formerly resided in large Pleistocene lake systems that are now closed basins.

Mountain whitefish in the Big Lost River are thought to be most closely related to populations that occur in the upper Snake River based on genetic data from Whiteley et al. (2006) and Campbell and Cegelski (2005). The species most likely entered the Big Lost River approximately 10,000 years ago (Van Kirk et al. 2003, p. 8). Today, mountain whitefish in the Big Lost River are physically isolated from other populations within the Snake River basin.

Mountain whitefish, also known as mountain herring, are about 57 centimeters (cm) (22 inches (in)) in length. The general body shape is slender with a somewhat round cross section, and body coloration is typically silver on the sides, dusky olive green or blue on the back, and the belly is a dull white (Simpson and Wallace 1982, p. 77). It has been suggested that individuals from the Big Lost River appear to be different from other populations of mountain whitefish in coloration and body shape, but data to confirm this observation has not yet been collected (A. Whiteley, pers. comm. 2007a).

The spawning season for mountain whitefish is in the fall, and is correlated with stream temperature (Simpson and Wallace 1982, p. 77; Wydoski 2001, p. 694). Unlike other salmonids, mountain whitefish are broadcast spawners in which a nest or redd is not created; females scatter eggs and the males fertilize them (McGinnis 1984, p. 137).

Mountain whitefish are thought to be opportunistic bottom feeders that consume whatever is in abundance, including fish eggs during the spawning season (McGinnis 1984, p. 137). It is known to actively feed on both aquatic and terrestrial insects, but is also a piscivore (eats other fish) (NatureServe 2007). Mountain whitefish reach sexual maturity at 3 to 4 years, and have been observed to live up to 12 years (Wydoski 2001, p. 694).

In making a 90-day finding on a petition to list a species, we must first establish that the subject of the petition may constitute a “species” under section 3(16) of the Act. In this case, the petitioner has requested that the mountain whitefish occupying the Big Lost River in Idaho be listed as a separate species, subspecies, or in the alternative, as a distinct population segment. For vertebrates, the Act allows listing of these three entities (16 U.S.C. 1532(16)).

The mountain whitefish in the Big Lost River of Idaho are currently recognized as members of the single species Prosopium williamsoni, which is considered common and widespread throughout the mountainous western United States northward into Canada (NatureServe 2007). The mountain whitefish in the Big Lost River are not recognized as a separate species or subspecies by the American Fisheries Society (Nelson et al. 2004, p. 86), nor by the Integrated Taxonomic Information System (2007). The State of Idaho does not consider the mountain whitefish occupying the Big Lost River to be either a significant species or a species of concern (Idaho Comprehensive Wildlife Strategy 2005).

The petitioner's arguments for the recognition of mountain whitefish in the Big Lost River as a species, subspecies or distinct population segment (discussed separately, below), rely primarily on the analysis of molecular data. Because of the complex and highly technical nature of molecular analysis, we consulted with a fisheries genetics expert within the Service to assess the petitioner's assertions to the potential significance of the genetics information presented. Dr. Donald E. Campton, Senior Scientist at the U.S. Fish and Wildlife Service's Abernathy Fish Technology Center and former President of the Genetics Section of the American Fisheries Society, served as our consultant on this finding.

The petitioner contends that “the best available science demonstrates that the Big Lost River Mountain Whitefish should be protected as a separate species or subspecies of whitefish because all genetic analyses demonstrate that it is genetically unique—so much so that the genetic distance observed between Big Lost River mountain whitefish and surrounding populations is at least as large as that seen between other subspecies or even species. [ESF] Status Report [2006], pp. 6, 14-15.” The ESF Status Report 2006, p. 6 cites Whiteley and Gamett (2002) for the basis of this assertion. Whiteley and Gamett (2002) is an abstract of a presentation given at the Sinks Symposium of the Idaho Chapter of the American Fisheries Society in February 2002 (Van Kirk et al. 2003, p. 13).

We contacted Mr. Gamett to determine whether any written document was available reflecting the content of that presentation, but found that the abstract was the only written record. The Symposium Proceedings (Van Kirk et al. 2003) were available to us in our files. The abstract does not state that “the genetic distance is at least as large as that seen between other subspecies or even species,” but rather that “consideration of the Big Lost River mountain whitefish as a separate subspecies may be warranted.” This appears to represent the personal opinions of the presenting researchers, no data are presented to support the petitioner's claim regarding genetic distance, and the ESF Status Report 2006 cited by the petitioner appears to have overstated the conclusions of Whiteley and Gamett (2002).

Data available in our files from a 2005 Idaho Department of Fish and Game Report do not support the contention that mountain whitefish found in the Big Lost River are genetically equivalent to a subspecies or species. In analyzing the sequence divergence of mitochondrial DNA between whitefish populations, Campbell and Cegelski (2005, Figure 3) found that the percent sequence divergence of mountain whitefish from the Big Lost River compared to other populations within the Upper Snake River Basin ranged from 0.33 to 0.49 percent. The authors note that, for comparison purposes, sequence divergence between recognized subspecies of cutthroat trout range ( Oncorhynchus clarki lewisi and O. c. bouvieri ) from 1.4 to 1.9 percent, and sequence divergence between different species of trout ( O. mykiss and O. clarki ) range from 4.0 to 4.5 percent (Campbell and Cegelski 2005, p. 6); these are far higher levels of mtDNA sequence divergence than was observed between mountain whitefish in the Big Lost River and other populations within the Upper Snake River assemblage. According to this report, the genetic distance between mountain whitefish in the Big Lost River and surrounding populations is far less than that observed between other subspecies or species of salmonids. Furthermore, several other populations of mountain whitefish examined by Campbell and Cegelski (2005, Figure 3) exhibited levels of divergence equal to or greater than that exhibited by fish from the Big Lost River (the Boise River populations, for example). This issue is discussed in further detail in the distinct population segment analysis presented below.

The petitioner's citation of pages 14-15 of the ESF Status Report 2006 in support of their contention that mountain whitefish in the Big Lost River merit consideration as a separate species or subspecies apparently refers to several different statements and sources, beginning with the citation of Whiteley (2002) as stating that “the Big Lost [mountain whitefish] should be considered as a separate group. This group is highly genetically differentiated from all other populations analyzed to date” (ESF Status Report 2006, p. 15).

The ESF Status Report 2006 presented only conclusions from the Whiteley 2002 reference, but provided no data or analysis to support those conclusions. Only the name of the author, a title, and the name of a genetics laboratory in the Biological Sciences Department at the University of Montana was provided under the Whiteley 2002 citation (ESF Status Report 2006, p. 18) and we were unable to locate a publication by that name through a search of the published literature. We therefore contacted Mr. Whiteley and asked for a copy of the referenced publication. Mr. Whiteley informed us that the document cited was an unpublished report to a funding agency (A. Whiteley, pers. comm. 2007b), and referred us to a recently published, peer-reviewed paper on the genetics of mountain whitefish (Whiteley et al. 2006, already contained in our files and discussed further below). In responding to us, Mr. Whiteley also stated that he believes that mountain whitefish in the Big Lost River are more divergent than two other “species” of whitefish, Prosopium spilonotus and P. abyssicola (A. Whiteley, 2007b; quotes from author's original communication). However, Mr. Whiteley went on to indicate that the classification of these mountain whitefish species is not clearly defined (that they may not be “good” species; A. Whiteley, 2007b, quotes from author's original communication) and subject to debate.

The petitioner further references the following statements: “In analysis of all the genetic information available at that time, Gamett et al. (2004) concluded that Big Lost River whitefish are genetically different from all other whitefish and they are likely a unique species or subspecies of fish,” and “Given the most recent genetic studies of Miller et al. (2005) and Campbell et al. (2005), all of which confirm past studies and conclusions—the Big Lost mountain whitefish must be managed as a separate species from all other mountain whitefish” (ESF Status Report 2006, p. 15). The Gamett et al. (2004) citation appears to be a reference to an oral presentation made at a meeting of the Idaho Fish and Game Commissioners (ESF Status Report 2006, p. 16), and it was therefore unavailable to us. The citations for both Miller et al. (2005) and Campbell et al. (2005) appear to be references to abstracts, papers, or posters presented at a meeting of the American Fisheries Society and were not available to us.

In our files we had a recent publication, W, Whiteley et al. (2006), regarding the genetics of mountain whitefish which was not cited in the ESF Status Report 2006. In this publication, the researchers utilized both allozymes and microsatellites to examine the genetic structure of mountain whitefish populations throughout the northwestern United States and British Columbia, plus two populations from western Alberta. The results indicated three large-scale genetic assemblages of mountain whitefish in this region based on allozyme data, and five large-scale genetic assemblages based on the microsatellite data (Whiteley et al. 2006, p. 2778).

The Big Lost River population was included within the resulting Upper Snake River assemblage in both cases and is described as the “most genetically divergent” site in that assemblage. However, the data indicate that the degree of genetic divergence of mountain whitefish in the Big Lost River from other populations in the upper Snake River region is substantially less than the genetic divergence observed between the major assemblages. The authors note low levels of within-population genetic variation in several physically isolated populations of mountain whitefish, including not only the Big Lost River, but also the Big Wood River, Bull River, and Thutade Lake (Whiteley et al. 2006, p. 2780). They also note a higher degree of genetic differentiation in several physically isolated sites in the Upper Snake region, which is to be expected when gene flow is precluded geographically. In addition to the Big Lost River, this pattern was observed in the Henry's Fork and several Bonneville Basin sites (Whiteley et al. 2006, p. 2781).

This most recent analysis of the genetic relationships of mountain whitefish (Whiteley et al. 2006) does not support the contention that mountain whitefish of the Big Lost River are distinctive or unique genetically as compared to other populations in the upper Snake River assemblages, or as compared to populations within other assemblages relative to the rest of the species. Rather, the authors point to a high degree of genetic differentiation between many populations of mountain whitefish in the Upper Snake River due to the topography of the region, and characterize those populations as “more finely subdivided than elsewhere” (Whiteley et al. 2006, p. 2781). The authors also point out that the degree of genetic differentiation observed in mountain whitefish among tributaries within river basins is less than that observed in populations of other salmonids, such as bull trout ( Salvelinus confluentus ) and westslope cutthroat trout ( Oncorhynchus clarki lewisi ) (i.e., bull trout and westslope cutthroat trout show greater levels of genetic differentiation between populations within river basins than do mountain whitefish) (Whiteley et al. 2006, p. 2783). Despite this high degree of genetic structuring, it has not been suggested in literature, that each of these bull trout or westslope cutthroat trout populations be considered as separate subspecies or species. The mountain whitefish in the Big Lost River exhibit less genetic differentiation than these populations.

Also referenced by the petitioner in the ESF Status Report 2006 is the statement that “Whitefish in the Big Lost River are fixed for microsatellite alleles that are rare or not present in the surrounding rivers” (ESF Status Report 2006, p. 15). The petition cites Whiteley and Gamett (2002), which is the previously mentioned abstract from a meeting of the Idaho Chapter of the American Fisheries Society (Van Kirk et al. 2003, p. 13), available to us in our files. It refers to “the fixation of a unique allele in the Big Lost River population at one of the microsatellite loci.” The ESF Status Report 2006 implies that there are multiple rare or unique microsatellite alleles in the Big Lost River population, when in fact the abstract indicates there was only one unique allele.

Although we were not provided with the data to support this statement, even if we assume that one microsatellite allele has become fixed in mountain whitefish occupying the Big Lost River, that information does not in and of itself confer any biological or ecological importance (e.g., as measured by morphological, physiological, or behavioral traits) because microsatellite alleles are considered selectively neutral, the frequencies of which largely reflect random or stochastic processes (e.g., genetic drift, population bottlenecks, founder effects, mutation rates) rather than selection for traits that confer increased fitness (Ashley and Dow 1994, p. 185). Indeed, the total lack of variability observed in microsatellites sampled for mountain whitefish in the Big Lost River (Whiteley et al. 2006, p. 2775) indicates that this population has likely undergone a past population bottleneck relative to other populations with a subsequent loss of genetic variability and random fixation (e.g., via drift of a unique [or nearly unique] allele) (D. Campton, pers. comm. 2007). Under such conditions, genetic distance may increase quickly, but is not in and of itself indicative of biological significance (Hedrick 1999, pp. 315, 316).

We have no information, and the petitioner has offered none, to indicate that the fixation of this single microsatellite allele may in any way be biologically important or significant to the taxon as a whole. Such fixed allelic differences between geographically isolated freshwater populations of salmonid fishes are not considered uncommon (Allendorf and Waples 1996, p. 257).

In sum, mountain whitefish occurring in the Big Lost River are not currently recognized as a subspecies or species (Nelson et al. 2004, p. 86; ITIS 2007), and neither the information provided in the petition nor in our files suggest that mountain whitefish in the Big Lost River may represent a distinct species or subspecies. Even considering the additional information supplied by Mr. Whiteley, our conclusion remains the same. Although no universally accepted definition of species and subspecies exists, in general such classifications are based on multiples lines of evidence, including factors such as morphology, behavior, and genetic characters (Haig et al. 2006, p. 1586). Information in our files indicates that the genetic distance observed between mountain whitefish in the Big Lost River and surrounding populations is substantially less than that observed between other subspecies or species of salmonids (Campbell and Cegelski 2005, p. 6).

Likewise, the petition provides no substantial information to support its assertion that the mountain whitefish in the Big Lost River constitute a genetically unique stock; although the population possesses one unique haplotype, almost every population sampled had at least one unique haplotype, and some had several (Campbell and Cegelski 2005, Table 1). All available evidence indicates that there is a high degree of genetic structuring between populations of mountain whitefish, as is frequently observed in populations of freshwater salmonids (Allendorf and Waples 1996, p. 257; Whiteley et al. 2006, p. 2783), but that the degree of genetic differentiation between mountain whitefish in the Big Lost River and surrounding populations is no greater than that observed between other populations of mountain whitefish (Whiteley et al. 2006, p. 2781; Campbell and Cegelski 2005, Figure 3, p. 5).

Although mountain whitefish in the Big Lost River may be genetically differentiated from other populations of the species, the data demonstrate that the same can be said of many populations of whitefish throughout the species' range; this widespread genetic structuring of populations alone does not indicate that each of these individual populations may warrant consideration as a separate subspecies or species (Haig et al. 2006, p. 1588). We conclude that the petitioner did not present substantial information indicating that mountain whitefish in the Big Lost River may be a species or subspecies.

Under the Act, we can consider for listing any species, subspecies, or distinct population segment (DPS) of any species of vertebrate fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). The petitioner has asked us to consider listing mountain whitefish occurring in the Big Lost River of Idaho as a DPS. We, along with the National Marine Fisheries Service, developed the Policy Regarding the Recognition of Distinct Vertebrate Population Segments (DPS Policy) (February 7, 1996, 61 FR 4722) to help us in determining what qualifies as a DPS under the Act. The policy identifies three elements that are to be considered in a decision regarding the status of a possible DPS as endangered or threatened under the Act:

1. Discreteness of the population segment in relation to the remainder of the species to which it belongs;

2. The significance of the population segment to the species to which it belongs; and

3. The population segment's conservation status in relation to the Act's standards for listing.

The petitioner asserts that the mountain whitefish occupying the Big Lost River basin are discrete due to the terminal nature of the Big Lost River within a sink drainage and the isolation of this population. Our DPS policy states that a population segment of a vertebrate species may be considered discrete if it is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. We agree that mountain whitefish in the Big Lost River may be considered discrete, since they occur in a closed basin lacking a surface connection to any major river system and are therefore physically separated from the remainder of the populations in the taxon. We therefore conclude that there is substantial information indicating that mountain whitefish in the Big Lost River may satisfy the discreteness criterion of the DPS policy.

If a population segment is considered discrete, our DPS policy directs us to consider available scientific evidence of the importance of this discrete population to the remainder of the taxon (species) to which it belongs. The policy suggests four potential factors to consider in evaluating significance:

1. Persistence of the discrete population in an ecological setting unusual or unique for the taxon,

2. Evidence that loss of the discrete population segment would result in a significant gap in the range of the taxon,

3. Evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range, or

4. Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics.

The petitioner points to two of these four factors in arguing for the significance of a possible DPS, contending that mountain whitefish occupying the Big Lost River are significant “because it [mountain whitefish] exists in a unique ecological setting that has contributed to its genetic differentiation, and because it differs markedly in its genetic characteristics from other whitefish populations.” The petition asserts that the Big Lost River is a unique ecological setting because it is one of five so-called “sinks drainages” that are a collection of closed surface drainage basins in southeastern Idaho, and that this physical isolation has led to genetic and other differences.

The petitioner's argument that the mountain whitefish of the Big Lost River occupy a unique ecological setting relative to the rest of the species rests on the fact that the Big Lost River basin is a closed surface drainage basin. However, as noted earlier, the mountain whitefish also occurs in isolated populations in sink drainages in the Bonneville Basin in Utah and the Lahontan Basin in California and Nevada. Therefore, the mere fact that these mountain whitefish are found in a physically isolated drainage is not in and of itself unique, unusual, or significant to the species as a whole.

In addition, other mountain whitefish occur in other types of physically isolated settings, such as above impassable waterfalls (e.g., Big Wood River and Henry's Fork of the Snake River in Idaho, or Bull River and Thutade Lake in British Columbia; Whiteley et al. 2006, p. 2780). The petitioner does not provide any information that the Big Lost river drainage is ecologically unusual or unique in any other way (e.g., in terms of prey species, community composition, water chemistry, substrate), apart from its physical isolation. As other populations of mountain whitefish also occur in closed drainage basins within the range of the species, and other populations occur within other physically isolated settings, the petition information does not indicate that the ecological setting of the Big Lost River is unique or unusual for the species.

We next evaluate whether the mountain whitefish in the Big Lost River differ markedly from the remainder of the species in its genetic characteristics. The petition contends that mountain whitefish in the Big Lost River meet the significance criterion of the DPS policy “given the high level of genetic, morphological, and physical uniqueness of the Big Lost River Mountain Whitefish to the species as a whole.” As evidence, the petitioner states that “Big Lost River Mountain Whitefish are isolated and evolving separately from all other whitefish populations; the Big Lost River Mountain Whitefish have coloration and morphological differences—morphologically Big Lost River Mountain Whitefish are distinct from all other mountain whitefish; Big Lost River Mountain Whitefish are fixed for microsatellite alleles that are rare or not present in the surrounding rivers; biologically, Big Lost River Mountain Whitefish are an evolutionarily independent unit because they are isolated from surrounding populations and have been for some time; and the Big Lost River Mountain Whitefish is highly genetically differentiated from all other whitefish populations analyzed to date. [ESF] Status Report [2006], pp. 14-15.”

We have already addressed in our evaluation of whether this population may be a separate species or subspecies, the petition's points regarding the fixation of a single microsatellite allele and the degree of genetic differentiation observed in mountain whitefish of the Big Lost River. In short, we concluded that the ESF Status Report 2006 had overstated the findings of Whiteley and Gamett 2002 by implying that more than one microsatellite allele was fixed in this population, when the abstract indicates that they only detected the fixation of a unique allele at a single microsatellite locus. We also found that the petitioner had not provided substantial information to indicate that the fixation of this one microsatellite allele may be significant to the taxon as a whole, particularly since microsatellites are considered likely to be neutral markers (Ashley and Dow 1994, p. 185), and fixed allelic differences between isolated populations of freshwater fishes are not considered to be uncommon (Gyllensten 1985, p. 691; Allendorf and Waples 1996, p. 257).

We likewise concluded that the petitioner had not provided substantial information indicating that the genetic distance between mountain whitefish in the Big Lost River and surrounding populations was so great as to merit classification as a separate subspecies or species. Here, however, we must address whether the petitioner has provided us with substantial information indicating that there may be marked genetic differences between mountain whitefish found in the Big Lost River and the remainder of the species such that mountain whitefish occurring in the Big Lost River may be considered significant to the taxon as a whole. The petitioner relies upon pages 14-15 in the ESF Status Report 2006 in support of its significance argument regarding the genetic status of mountain whitefish in the Big Lost River.

The first part of the discussion on these pages cites the studies of Miller et al. (2005) and Campbell et al. (2005), neither of which was directly available to us. According to the ESF Status Report 2006, Miller et al. (2005) defined two distinct clades of mountain whitefish and possibly four separate species, although the four possible species are not identified, and Campbell et al. (2005) found evidence for three large genetic assemblages of mountain whitefish, but neither reference apparently specifically addresses mountain whitefish in the Big Lost River (ESF Status Report 2006, p. 14).

The ESF Status Report 2006 also cites Whiteley (2002) as identifying mountain whitefish from the Big Lost River as genetically most similar to the Upper Snake River populations above Shoshone Falls. The ESF Status Report 2006 quotes from Whiteley (2002) that “This group is highly genetically differentiated from all other populations analyzed to date. It is most genetically similar to populations from the upper Snake River (above Shoshone Falls) * * * These fish also have coloration and morphological differences, which provides additional evidence that they are highly differentiated from other mountain whitefish populations” (ESF Status Report 2006, p. 15).

As noted earlier, the Whiteley (2002) citation in the ESF Status Report 2006 does not provide a reference to any obtainable published work or data, and when we requested the information from the author, he informed us that the quotations cited in the ESF Status Report 2006 were from an unpublished report to a funding agency, and provided us with a more recent published paper, Whiteley et al. (2006) (A. Whiteley, pers. comm. 2007a, b). This publication was also available to us in our files. Similar to the described findings of Campbell et al. 2005, Whiteley et al. (2006) found evidence for three large genetic assemblages of mountain whitefish in the Pacific Northwest, which they termed Cascadia, the Upper Missouri, and Upper Snake.

As described above, mountain whitefish in the Big Lost River were one of several populations included within the Upper Snake assemblage. Although described as the “most genetically divergent” site in that assemblage, this publication identifies several other populations of mountain whitefish that, due to their physical isolation, exhibit low levels of within-population genetic variation (Big Lost River, Big Wood River, Bull River, and Thutade Lake) and that demonstrate a high degree of genetic differentiation, presumably due to reduced gene flow as a result of physical barriers (Big Lost River, Henry's Fork and several Bonneville Basin sites) (Whiteley et al. 2006, pp. 2780-2781). Thus the mountain whitefish found in the Big Lost River are not particularly distinctive or unique genetically in relation to the species as a whole, as several other isolated populations of the species exhibit similar levels of genetic variability and differentiation.

In a personal communication to the Service, Mr. Whiteley also indicated that mountain whitefish in the Big Lost River “fall into the upper Snake River group and thus are not completely differentiated from all other whitefish populations analyzed to date” (A. Whiteley, 2007b). He went on to state that the degree of differentiation for mountain whitefish in the Big Lost River is the greatest he has observed, and that it is the single most divergent population from other nearby populations in the species' range. While we acknowledge that mountain whitefish in the Big Lost River may be genetically distinguished from other nearby populations, the petitioner provides no data to support the contention that this degree of divergence may be considered a marked level of differentiation, particularly in light of the fact that other populations of mountain whitefish, such as those in the Boise River, show a greater degree of difference, as described below.

In considering the potential genetic distinctiveness of mountain whitefish in the Big Lost River, we evaluated the recent work of Campbell and Cegelski (2005), available in our files, which examined the phylogeography of mountain whitefish in Idaho, Utah, and Montana based on sequence analyses of the cytochrome-b gene of mitochondrial DNA (mtDNA). These data reveal that populations of mountain whitefish in general, and not just in the Big Lost River, are characterized by fixed, or nearly fixed, haplotypic differences between populations: Only 2 haplotypes out of 18 were shared by multiple populations (Campbell and Cegelski 2005, pp. 4-5).

The possession of a unique haplotype is therefore not unique to the mountain whitefish of the Big Lost River; on the contrary, the publication by Campbell and Cegelski (2005) demonstrates that most populations of mountain whitefish sampled possess unique haplotypes. For example, in a sample of 7 individuals from the Boise River, the researchers identified 3 different haplotypes not observed in any of the 10 other populations sampled. The Big Lost River population possessed one unique haplotype, Haplotype 9. An analysis of the percent sequence divergence data presented in Figure 4 (Campbell and Cegelski 2005, p. 6) demonstrates that Haplotype 9 in the Big Lost River population differs from Haplotype 8 in the Henry's Fork population by 0.33 percent. This degree of divergence is far less than that observed between other populations of whitefish examined in this study, especially as compared to populations in the Lower Snake River assemblage. Haplotype 6, for example, from the Boise River, differs from Haplotype 5 observed within the same population by 1.49 percent.

Campbell and Cegelski (2005) also found evidence for three broad genetic assemblages of mountain whitefish, which they term the Upper Snake River, Lower Snake River, and Upper Missouri River, and found that mountain whitefish from the Big Lost River, which have been isolated within that drainage, fall within the Upper Snake River Basin assemblage. The authors conclude that their results, in conjunction with “previous research indicating that mountain whitefish in the Big Lost [River] appear to be genetically and morphologically distinct” (citing Whiteley and Gamett 2003 [ sic ; 2002]), justify conserving the mountain whitefish occurring in the Big Lost River independent of other populations in the larger genetic assemblage to which they belong.

We encourage the conservation of mountain whitefish and other native species as components of the natural biodiversity of the Big Lost River. However, the desirability of conserving mountain whitefish is not the same issue as whether the mountain whitefish found in the Big Lost River may qualify as a listable entity under the Act. Under the “significance” prong of the DPS policy we are required to apply a different and specific set of criteria. Based on the information in the petition and our files, we do not find substantial or reliable information indicating that mountain whitefish in the Big Lost River may be considered any more distinct genetically than any of several other populations of mountain whitefish examined, all of which may well be argued to merit conservation efforts outside of the realm of the Act.

As noted above, the most recent genetic work (Whiteley et al. 2006) indicates that there are several physically isolated populations of mountain whitefish that, as expected under a scenario of reduced gene flow, show some divergence from their presumed common populations of origin. Particularly when a population has gone through a presumed bottleneck, as evidenced by the lack of microsatellite variation observed in mountain whitefish in the Big Lost River, the amount of genetic distance is expected to increase very quickly (Hedrick 1999, p. 315). Such increased distance does not, however, automatically confer biological significance in the absence of any indication of adaptive differences. The research clearly indicates that throughout the relatively broad range sampled, most populations of mountain whitefish have diverged to the point of possessing unique haplotypes, and that other populations of mountain whitefish exhibit a greater degree of genetic divergence than observed in mountain whitefish from the Big Lost River (Campell and Cegelski 2005, Figure 3). Mountain whitefish in general appear to exhibit a high degree of genetic structure between populations, as observed in many species of freshwater fishes (Gyllensten 1985, p. 691; Allendorf and Waples 1996, p. 257; Whiteley et al. 2006, p. 2783). The petition does not provide substantial evidence that the mountain whitefish in the Big Lost River are any more different than any of several other populations of whitefish throughout the species' range.

In addition to genetics, the petitioner contends that differences in coloration and morphology of mountain whitefish in the Big Lost River provide additional evidence that they are “highly differentiated” from all other populations, citing the ESF Status Report 2006, pp. 14-15. The ESF Status Report 2006 contains no data or other analysis to support its assertions regarding color and morphological differences, but cites Whiteley (2002) as the source of this information; however, as described earlier, no obtainable reference is available (ESF Status Report 2006, p. 18). When we contacted the author and asked if he could provide us with the data demonstrating the referenced coloration and morphological differences. Mr. Whiteley replied, “I don't have any data on morphological variation for whitefish from the Big Lost. The references you cite all go back to personal observations by myself” (A. Whiteley, pers. comm., 2007a).

Although he believes that “whitefish in the Big Lost [River] look different,” Mr. Whiteley stated that “these traits have not been quantified” (A. Whiteley, pers. comm. 2007a). This suggests that the authors of the ESF Status Report 2006 erred in alluding to “phenotypic studies” if, in fact, they were referring to a researcher's personal observations (ESF Status Report 2006, p. 6). Therefore, we do not consider the statement in the ESF Status Report 2006 to this effect to be reliable.

We accept Mr. Whiteley's description (A. Whiteley, pers. comm. 2007a) that mountain whitefish from the Big Lost River may differ in color and form. However, based purely on Mr. Whiteley's opinion of the nature of these differences (shorter heads and possibly differing in body shape), we conclude that the petitioner has not provided us with substantial and reliable information to support the claim that the mountain whitefish in the Big Lost River have a “high level of [genetic], morphological and physical uniqueness * * * to the species as a whole.” We have no evidence before us to suggest that any differences in color or morphology that may exist are anything other than natural phenotypic variation that is often observed in different populations of fish.

Natural variation in characteristics such as body shape in fish is commonly attributable to environmental factors, such as water temperature during development (e.g., Barlow 1961). Additionally, many fish exhibit a considerable degree of intraspecific variation in morphology, which has been experimentally demonstrated to be the result of phenotypic plasticity in response to the environment rather than a heritable response to selection (e.g., Mittelbach et al. 1999). Head depth is a common plastic trait in fish related to diet (e.g., Day et al. 1994). We have no information in our files, nor has the petitioner provided any substantial information, to suggest that any apparent differences in morphology or coloration of the mountain whitefish are in any way biologically meaningful such that they may be significant to the species as a whole. We also considered the additional information provided by Mr. Whiteley (A. Whiteley, pers. comm. 2007a). Even considering this additional information, our conclusion remains the same.

Our DPS policy directs us to evaluate the significance of a discrete population in the context of its importance to the remainder of the taxon. Based on an analysis of the information presented by the petitioner, Service staff expertise, and information within our files, our evaluation indicates that the genetic, morphological, and coloration differences cited by the petitioner do not indicate that mountain whitefish found in the Big Lost River may differ markedly from other populations of mountain whitefish such as to be significant to the species as a whole. Therefore, the differences do not rise to the level of significance under the criteria set by our DPS policy. Because the mountain whitefish occupying the Big Lost River fail to meet the significance criteria for a DPS under the policy, we have determined that they do not constitute a listable entity under the Act. We also note that the petitioner did not petition us to list the Big Lost River mountain whitefish on the basis of a significant portion of the species' range, nor did the petitioner provide specific information indicating that the mountain whitefish within the Big Lost River basin represented a significant portion of the range of the species. Therefore, we did not specifically analyze whether the mountain whitefish in the Big Lost River basin represented a significant portion of the range of the species.

We have reviewed and evaluated the petition and literature cited in the petition in relation to information available to us. On the basis of this review and evaluation, we find that the petition does not present substantial scientific information to indicate that listing the mountain whitefish in the Big Lost River of Idaho may be warranted. This finding is based on lack of substantial information indicating that the mountain whitefish occurring in the Big Lost River qualify as a listable entity under section 3(16) of the Act. We find that mountain whitefish occurring in the Big Lost River do not constitute a separate species or subspecies, and although they may be considered discrete, neither the petition nor our files contain substantial information to indicate that this population may be biologically or ecologically significant according to the criteria under our DPS policy. Although we are not commencing a status review in response to this petition, we will continue to monitor the status and trends, potential threats, and ongoing management actions that might affect mountain whitefish in the Big Lost River. We encourage interested parties to continue to gather data that will assist with conservation of mountain whitefish in the Big Lost River basin. If you wish to provide information regarding mountain whitefish in the Big Lost River, you may submit your information or materials to the Field Supervisor, Snake River Fish and Wildlife Office (see ADDRESSES ).

A complete list of all references cited is available on request from the Snake River Fish and Wildlife Office (see ADDRESSES ).

The primary author of this notice is the Snake River Fish and Wildlife Office (see ADDRESSES ).

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

The reef fish and shrimp fisheries of the Gulf of Mexico are managed under their respective FMPs (Reef Fish FMP and Shrimp FMP). The FMPs were prepared by the Gulf of Mexico Fishery Management Council (Council) and are implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

Multiple fisheries influence the status of the red snapper stock in the Gulf of Mexico, including the commercial and recreational red snapper fisheries and the shrimp trawl fishery, which takes red snapper incidentally when harvesting shrimp. A 2005 stock assessment concluded the Gulf of Mexico red snapper stock is overfished and undergoing overfishing, and red snapper fishing mortality rates are too high in both the directed and shrimp fisheries. In response to the 2005 assessment, the Council began drafting Amendment 27/14 to address overfishing and revise the red snapper rebuilding plan. In August 2006, the Council voted to delay consideration of the amendment until January 2007, pending completion of 2006 recreational effort and landings data and shrimp effort data.

On March 12, 2007, the United States District Court for the Southern District of Texas, Houston Division, issued a ruling on legal challenges to the current red snapper rebuilding plan contained in Amendment 22 to the Reef Fish FMP ( Coastal Conservation Association v. Gutierrez et al. , Case No. H-05-1214, consolidated with Gulf Restoration Network et al. , v. Gutierrez et al. , Case No. H-05-2998). The Court required a new rebuilding plan by December 12, 2007. However, consistent with the Court ruling, if the revised rebuilding plan cannot be implemented by December 12, 2007, additional rule-making may be required to implement one or more of the measures contained in Amendment 27/14 on an interim basis.

Therefore, to reduce fishing mortality and maintain stock rebuilding in the interim, NMFS published a temporary rule, effective May 2, 2007 (72 FR 15617, April 2, 2007). The temporary rule reduced the recreational quota from 4.47 million lb (2.03 million kg) to 3.185 million lb (1.445 million kg), and the commercial quota from 4.65 million lb (2.11 million kg) to 3.315 million lb (1.504 million kg). The recreational bag limit was reduced from four fish to two fish per person per day to constrain the recreational harvest to its quota during the existing April 21 through October 31 fishing season. The commercial minimum size limit was reduced from 15 inches (38 cm) total length (TL) to 13 inches (33 cm) TL to reduce discard mortality. To reduce red snapper bycatch mortality in the shrimp fishery, a target reduction goal was established to reduce red snapper bycatch mortality by at least 50 percent compared to the bycatch mortality rate during the 2001-2003 time period. Under the Magnuson-Stevens Act, NMFS has the ability to extend these interim measures if necessary.

The measures in the temporary rule and this proposed rule are consistent with the March 12, 2007 Court ruling. The measures in the proposed rule are designed to address long-term reductions in red snapper fishing mortality rates of the directed red snapper fisheries, shrimp fishery, and other reef fish fisheries.

The proposed actions are intended to implement revisions to the Council's red snapper rebuilding plan with a goal of having at least a 50-percent probability of ending overfishing for red snapper between 2009 and 2010 and rebuilding the stock to the biomass level associated with maximum sustainable yield (MSY) by 2032. Under the proposed actions, the probability of ending overfishing by 2010 is estimated to be greater than 50 percent. The annual total allowable catch (TAC) during the first 3 years of the plan is 0.3 million lb (0.136 million kg) lower than the maximum annual TAC allowed under the rebuilding projections. Although the rebuilding plan does not account for additional reductions in release mortality expected from the proposed required use of circle hooks, dehooking devices, and venting tools, these proposed measures would further increase the probability of ending overfishing by 2010. Also, NMFS continues to develop bycatch reduction devices (BRDs) which promise better performance than those presently used in the shrimp fishery.

Beginning in 2011, the recommended revisions to the rebuilding plan would allow for harvest levels to begin increasing, while maintaining greater than a 50-percent probability of rebuilding the red snapper stock by the target date of 2032. Future TACs and quotas are modeled around yields associated with a fishing mortality producing MSY (proxy = 26-percent spawning potential ratio), in association with achieving needed reductions in bycatch and discard mortality in both the directed and shrimp fisheries. Under the recommended revisions to the rebuilding plan, the TAC would increase to 7.0 million lb (3.175 million kg) in 2011, and reach 14.0 million lb (6.35 million kg) by 2032. The recommended revisions to the rebuilding plan would also allow the shrimp bycatch mortality reduction target to drop from 74 percent in 2008 to 67 percent in 2011, and thereafter, the target would decline at a constant rate from 67 to 60 percent by 2032.

Any change made to the rebuilding plan and implementing measures, however, is contingent on successfully ending overfishing in the next 3 years and would require further action be recommended by the Council and subsequently approved by NMFS. To increase the probability of successfully rebuilding the red snapper stock, the rebuilding plan and management measures would be reviewed and adjusted, as necessary, based on periodic stock assessments.

To reduce fishing mortality and end overfishing of the red snapper stock in the Gulf of Mexico, the proposed rule would reduce the existing quotas for the commercial and recreational fisheries. The proposed rule would establish a commercial quota of 2.55 million lb (1.16 million kg) and a recreational quota of 2.45 million lb (1.11 million kg). Because of the individual fishing quota program in the commercial fishery, no measures are proposed to further constrain commercial harvest to its 2.55 million lb (1.16 million kg) quota, but measures are proposed to constrain the recreational harvest to its quota of 2.45 million (1.11 million kg). The Council considered various size limit and bag limit combinations which would determine the length of the recreational fishing season. The proposed two-fish bag limit would allow a June 1 through September 15 (107-day) recreational fishing season. In addition to the two-fish bag limit, constraining the captain and crew of for-hire vessels to a zero-fish bag limit would allow the fishing season to be extended through the end of September (122 days). Based on extensive public comment, the Council chose to assume a 10-percent reduction in post-hurricane fishing effort and landings when evaluating recreational management measures. Application of this assumption, along with implementation of the two-fish bag limit and the zero-fish captain and crew limit of for-hire vessels, would allow the recreational fishing season to extend from May 15 through October 15 (154 days). Although preliminary data suggest some declines have occurred since the 2005 hurricane season, the magnitude of reductions varies by fishing sector, is often less than 10 percent, and in some cases effort or landings have increased. Further, it is unknown how long post-hurricane reductions in landings and fishing effort may continue as the fisheries recover. The Council's recommended alternative for Action 1 of Amendment 27/14 includes, among other things, a recreational fishing season of 107 days, which when coupled with the zero captain and crew bag limit, results in a 122-day recreational season (June 1-September). However, the Council's recommended alternative for Action 2 would apply an assumed 10-percent reduction in post-hurricane recreational fishing effort to the measures in Action 1. Doing so results in a recreational fishing season of 154 days. In light of the foregoing discussion, NMFS proposes the recommended recreational season in Action 1, 107 days, coupled with the zero captain and crew bag limit, which results in a 122-day recreational season (June 1-September). NMFS also proposes, in the alternative, the longer 154-day recreational fishing season resulting from the Council's recommended alternative for Action 2. NMFS specifically requests comments on the assumed 10-percent reduction in effort and landings as recommended in Amendment 27/14, which would affect the designation of the length of the recreational fishing season established by this rule.

The existing 16-inch (41-cm) TL recreational minimum size limit would remain unchanged. Public comments during development of the amendment indicated most anglers preferred a longer fishing season rather than a lower minimum size limit. Lowering the recreational minimum size limit would have substantially shortened the fishing season to compensate for increases in angler catch rates. Although most anglers preferred a longer fishing season, they did not support a further reduction of the bag limit to one fish to further extend the fishing season because a one-fish bag limit was considered too low to provide a satisfactory recreational fishing trip.

Reductions in red snapper bycatch (regulatory discards) are needed in all sectors of the directed red snapper fishery to reduce overfishing in the short term and to recover the stock over the long term. The proposed rule would reduce the commercial size limit from 15 inches (38 cm) TL to 13 inches (33 cm) TL. This reduction in the size limit is expected to reduce dead discards by 40 to 60 percent and allow the stock to recover in a shorter time period. The proposed rule would also require the use of circle hooks, venting tools, and dehooking devices to reduce bycatch and bycatch mortality when fishing for Gulf reef fish in the exclusive economic zone (EEZ). It is unknown to what extent bycatch or bycatch mortality will be reduced by these gears, but all of these gears have been shown to increase the survival of released fish.

To end overfishing of red snapper between 2009 and 2010, the 2005 assessment for red snapper indicated the benchmark 2001-2003 level of red snapper bycatch mortality attributable to shrimp fishing must be reduced by 74 percent. The proposed rule would establish an initial reduction target 74 percent less than the benchmark. The proposed rule would also describe the process by which the target goals for bycatch mortality could be reduced over time, consistent with the stock rebuilding plan and subsequent stock assessments, through appropriate rulemaking. If stock rebuilding targets are met over the next 3 years and overfishing is ended, the target bycatch mortality goal for the shrimp fishery would then be decreased to 67 percent of the 2001-2003 benchmark beginning in 2011. Thereafter, the target goal would be reduced at a constant rate to achieve a target reduction goal of 60 percent less than the benchmark by 2032. However, any such change would occur only after the Council and NMFS reviewed updated information regarding the status of the red snapper stock and the rebuilding projections.

Subsequent to the benchmark years of 2001-2003, effort in the offshore shrimp fishery has declined dramatically due to external economic issues, such as increasing fixed costs (fuel, ice, etc.), imports, and stagnant shrimp prices. Juvenile red snapper are more abundant in the 10-30 fathom (18-55 m) depth strata from Mobile Bay, Alabama, to Brownsville, Texas, and effort reductions in this particular area are substantial. Effort within this area can be used as a proxy for bycatch mortality on juvenile red snapper. Bycatch mortality on juvenile red snapper in 2005 for the 10-30 fathom (18-55 m) depth strata was approximately 60 percent less than the benchmark 2001-2003 period, and in 2006, bycatch mortality was 65 percent less than the benchmark period. Early estimates for 2007 suggest effort in the Gulf shrimp fishery may be lower than in 2006.

To ensure the remaining reductions needed to meet the 74-percent target, the proposed rule would set forth the procedure by which NMFS would establish seasonal area closures for the Gulf shrimp fishery consistent with the framework procedures established in Amendment 27/14. Such closures, if necessary, would be established within some or all of the area that approximates the 10-30 fathom (18-55 m) depth strata from Mobile Bay, Alabama, to the Louisiana-Texas boundary. The proposed rule identifies an eastern zone, a Louisiana zone, and a Texas zone, bounded by coordinates marking the maximum closed area. The geographical scope and duration of the closure would be dependent on the level of effort reduction needed to meet the 74-percent reduction target. As an example, if the closure included the maximum area defined and covered the typical 60-day time period of the Texas closure, based on the level of effort expended in this area during recent years, such a closure would provide as much as a 24-percent reduction in fishing mortality on juvenile red snapper. Should additional closure of the shrimp fishery be needed after reopening Federal waters off Texas in July, the closure could be expanded to include waters off Texas as well as areas east of Texas.

To implement such a closure in accordance with the framework procedures established in Amendment 27/14, on or about March 1, NMFS would use the most recent 12-month period of shrimp effort data available, and assess the level of effort within the areas where red snapper are abundant. The NMFS Southeast Regional Administrator would, based on an assessment from the NMFS Southeast Fisheries Science Center, determine the geographical scope and duration of a closure needed to meet the bycatch mortality reduction target, and implement a closure intended to begin on the same date and time as the Texas closure. Coordinating the timing of the framework closure with that of the long-standing Texas closure would facilitate enforcement efforts by simplifying regulations for both fishermen and law enforcement agents. If the RA determines that a framework closure is necessary, the closure falls within the scope of the potential closures evaluated in the FMP such as coordination of any closure with the Texas closure, and good cause exists to waive notice and comment pursuant to the Administrative Procedure Act, NMFS will implement the closure by publication of a final rule in the Federal Register . If such good cause waiver is not justified, NMFS will implement the closure via appropriate notice and comment rulemaking.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, I have determined that this proposed rule is consistent with Amendment 27/14, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

This proposed rule has been determined to be significant for purposes of Executive Order 12866.

NMFS prepared a SEIS for this amendment. A notice of availability for the draft SEIS was published on April 20, 2007 (72 FR 19928). A notice of availability for the final SEIS was published on August 3, 2007 (72 FR 43271).

NMFS prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act, for this proposed rule. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the objectives of, and legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A copy of the full analysis is available from the Council (see ADDRESSES ). A summary of the IRFA follows.

The Magnuson-Stevens Act provides the statutory basis for the proposed rule. The proposed rule would reduce the commercial quota from 4.65 million lb (2.14 million kg) to 2.55 million lb (1.16 million kg) and the recreational quota from 4.47 million lb (2.06 million kg) to 2.45 million lb (1.11 million kg), reduce the recreational bag limit from four fish to two fish and the bag limit for captain and crew of for-hire vessels to zero, reduce the commercial minimum size limit from 15 inches (38 cm) TL to 13 inches (33 cm) TL, require participants in all Gulf reef fish fishery sectors to use non-stainless steel circle hooks (when using natural baits) and to use venting tools and dehooking devices, and provide for seasonal area closures of the Gulf shrimp fishery to reduce red snapper bycatch consistent with Amendment 27/14's framework procedure. In addition, the proposed rule would assume a 10-percent reduction in recreational red snapper effort and landings due to hurricane effects or in the alternative, not assume the 10-percent effort reduction, establish a target reduction goal for shrimp trawl bycatch mortality on red snapper, establish options for time-area closures for the shrimp fishery that would maintain the target reduction goal, and establish a framework whereby NMFS could adjust the target reduction goal and time-area closures. NMFS specifically requests comments on the assumed 10-percent reduction in effort and landings as recommended in Amendment 27/14, which would affect the designation of the length of the recreational fishing season established by this rule.

The purpose of this proposed rule is to reduce red snapper catch, bycatch, and discard mortality in the directed commercial and recreational fisheries and the shrimp fishery in order to end overfishing for red snapper between 2009 and 2010 and rebuild the stock by 2032 in compliance with the red snapper rebuilding plan.

No duplicative, overlapping or conflicting Federal rules have been identified.

Management actions considered in this proposed rule are expected to affect all vessels that operate in the commercial red snapper fishery, all vessels that have a Federal reef fish for-hire permit, and all dealers and processors that handle product from these fisheries. Although this proposed rule contains actions that pertain to the commercial shrimp fishery, these actions are not expected to impose any direct adverse impacts on the fishery or associated entities.

Prior to the January 2007 implementation of the red snapper individual fishing quota program (IFQ), 136 entities held Class 1 licenses that allowed a commercial vessel trip limit of up to 2,000 lb (907 kg) of red snapper and 628 entities held Class 2 licenses that allowed a trip limit of up to 200 lb (91 kg) of red snapper. Between 2002 and 2004, the top 50 red snapper vessels in terms of landings harvested 2.77 million lb (1.26 million kg) of red snapper, on average, or 64 percent of the industry total. Vessels ranked 51 to 131 harvested 1.29 million lb (0.59 million kg), on average, or 30 percent of the industry total for the same period. Thus, the top 131 red snapper vessels accounted for approximately 94 percent of the total industry red snapper landings. Red snapper are mainly harvested by fishermen using vertical-line gear. These fishermen accounted for approximately 90 percent of commercial red snapper Gulf harvests, on average, between 2002 and 2004.

Average annual gross receipts (2004 dollars) and net income (gross receipts minus all costs) per vessel vary by gear type, area fished, and volume of catch. High-volume vessels using vertical lines averaged gross receipts and net income of $110,070 and $28,466 in the northern Gulf, but only $67,979 and $23,822 in the eastern Gulf. Low-volume vessels using vertical lines averaged gross receipts and net income of $24,095 and $6,801 in the northern Gulf, but $24,588 and $4,479 respectively in the eastern Gulf. Vessels using bottom longlines averaged gross receipts and net income of $116,989 and $25,452 for high-volume vessels, but only $87,635 and $14,978 respectively for low-volume vessels.

The current fleet permitted to operate in the Gulf reef fish for-hire sector is estimated to be 1,625 vessels. The for-hire fleet is comprised of charterboats, which charge a fee on a vessel basis, and headboats, which charge a fee on an individual angler (head) basis. The average charterboat is estimated to generate $76,960 in annual revenues and $36,758 in annual profits, whereas the appropriate values for the average headboat are $404,172 and $338,209, respectively. On average, both charterboats and headboats operate at about 50 percent of their passenger capacity per trip.

The measures in this action would also be expected to affect fish dealers, particularly those that receive red snapper from harvesting vessels. A Federal permit is required for a fish dealer to receive reef fish from commercial vessels, and there are 227 dealers currently permitted to buy and sell reef fish species. All reef fish processors would be included in this total because all processors must be dealers. Most of these dealers are located in Florida (146), with 29 in Louisiana, 18 in Texas, 14 in Alabama, 5 in Mississippi, and 15 in states outside the Gulf. In addition, vessels identify the dealers who receive their fish on logbook reports. Commercial reef fish vessels with Federal permits are required to sell their harvest only to permitted dealers. From 1997 through 2002, on average, 154 reef fish dealers actively bought and sold red snapper. These dealers were distributed around the Gulf as follows: 7 in Alabama, 96 in Florida, 22 in Louisiana, 7 in Mississippi, and 22 in Texas. On average, Florida dealers purchased approximately $1.8 million of red snapper, followed by Louisiana ($1.4 million), Texas ($1.3 million), Mississippi ($174,000), and Alabama ($88,000). These dealers may hold permits for multiple fisheries, but it is not possible to determine what percentage of their total business comes from the red snapper fishery.

Although it is unknown how many eligible shrimp permit holders will apply for moratorium permits and, thus, would be potentially affected by this action, 2,666 vessels would qualify for the shrimp permit and are assumed to constitute the potentially affected universe of shrimp vessels. The average annual gross revenue (all harvest species) per qualifying vessel in 2005 was approximately $116,000, while the comparable figure for qualifying vessels active in the Gulf shrimp fishery, i.e. , vessels with recorded shrimp landings in 2005, was approximately $152,000. In the same year, the maximum annual gross revenue from shrimp by a vessel was approximately $757,000 for both all qualifying and active qualifying vessels, whereas the figure for all harvest species was approximately $1.89 million by an inactive qualifier and $757,000 for an active qualifier.

The most recent projection of performance in the commercial shrimp fishery indicated that the average vessel, across all vessel size categories, experienced a negative 33-percent rate of return and that economic losses would continue until 2012. Thus, almost any but the most minor additional financial burden would be expected to generate a significant adverse impact on affected vessels and potentially hasten additional exit from the fishery.

In 2005, 609 dealers were identified operating in the commercial shrimp fishery. Employment information for this sector is not available. In 2005, 60 processors in the shrimp fishery were identified, employing approximately 3,400 persons, or an average of 56 employees per entity. The maximum number of employees for a shrimp processor in 2005 was 353.

The Small Business Administration (SBA) defines a small business in the commercial fishing industry as an entity that is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has total annual average receipts not in excess of $4.0 million annually (NAICS codes 114111 and 114112, finfish and shellfish fishing). For for-hire vessels, these same criteria apply except that the annual receipts threshold is $6.5 million (NAICS code 713990, recreational industries). For seafood processors and dealers, the SBA uses an employee threshold rather than a receipts threshold. The threshold is 500 or fewer persons on a full-time, part-time, temporary, or other basis, at all its affiliated operations worldwide for a seafood processor and 100 or fewer persons for a seafood dealer.

Some persons/entities are known to own multiple vessels ( i.e. fleet operations) in the commercial red snapper fishery and in the commercial reef fish fisheries in general, but the extent of such operations is unknown. The maximum number of reef fish permits reported owned by the same person/entity is 6 permits. Additional permits and the revenues associated with those permits may be linked to an entity through affiliation rules, but such affiliation links cannot be made using existing data. Further, a definitive determination of whether any commercial entity would be considered a large entity cannot be made using average revenue information. However, since the average total revenue in the commercial red snapper fishery between 2002 and 2004 was $11.652 million, given the number of license holders in the fishery is 764, the summary statistics and the maximum number of permits owned by a single person/entity provided above, NMFS determined that all commercial reef fish harvest entities that would be affected by this action are small entities.

Fleet operations also exist in the for-hire sector, with at least one entity reported to hold 12 permits. The bulk of the fleet, however, consists of single permit operations. Thus, based on the average revenue figures above, all for-hire operations affected by this proposed rule are small entities.

Average employment per reef fish dealer is unknown. Although dealers and processors are not synonymous entities, total employment for reef fish processors in the Southeast is approximately 700 individuals, both part and full time. While all processors must be dealers, a dealer need not be a processor. Further, processing fish is a much more labor intensive than buying fish. Therefore, given the employment estimate for the processing sector and the number of dealers that participated in the fishery on average per year from 1997-2002 (154 dealers), NMFS assumed that the maximum number of employees for reef fish dealers and processors are unlikely to surpass the SBA employment benchmarks. Therefore, all reef fish dealers and processors affected by this proposed rule are small entities.

While gross revenues vary between shrimp vessels of different physical size, these differences do not affect the assessment of maximum gross revenue per vessel and the subsequent determination of whether shrimp vessels constitute large or small entities. As with the other sectors, fleet operations are known to exist in the commercial shrimp fishery, but the magnitude of such cannot be determined using available data. Given these findings, and the maximum revenue per vessel figures noted above, NMFS determined that all shrimp vessels that could be affected by this proposed rule are small entities.

Similar to the reef fish industry, processing shrimp is more labor intensive than buying shrimp. Thus, average employment in the shrimp dealer sector is assumed to be less than that in the processing sector. Because the maximum number of employees for a shrimp processor does not exceed the SBA threshold, all shrimp dealers and processors that could be affected by this proposed rule are small entities.

The proposed red snapper recreational and commercial quota decreases are expected to reduce profits in the for-hire and commercial sectors. In the for-hire sector, declines in profits, approximated by net operating revenue (gross revenue minus operating costs except labor) decreases, are expected due to declines in individual angler trip bookings. Under the proposed 2.45 million lb (1.11 million kg) recreational quota and two-fish bag limit, the estimated annual net operating revenue losses to the for-hire sector are approximately $1.1 million. It is not possible to accurately estimate the extent to which individual for-hire operations will be affected by the proposed quota reduction. However, a simple average suggests that, for the 1,625 vessels active in the for-hire sector, the average annual net operating revenue loss would approximate $680 per vessel. This simple arithmetic mean does not provide information on losses that may be incurred by a specific for-hire operation. Depending on the geographic location of their operation, level of activity, reliance on red snapper trips, diversity of species available, and preferences of their core clientele, some vessels likely would be impacted more than others. Quantifying the number of vessels that might face greater economic losses is not possible with available data. However, in general, the average impact per vessel will vary inversely with the number of vessels included in this core group. For example, if expected economic impacts were borne by 10 to 25 percent of the fleet, average losses in net operating revenue per vessel would be expected to range from approximately $2,700 to $6,800.

The assessment of impacts on for-hire profits was based on the recreational quota and not season length. Although industry comment indicated that a longer open season was preferable to a shorter season, regardless of total allowable catch, and would result in less economic losses, estimating the differential economic impacts of season length was not possible with available data, and the estimated reduction in for-hire profits as a result of the proposed recreational quota is neutral with respect to season length. If red snapper season length is a significant factor in for-hire profits, then the estimated $1.1 million losses could understate by an indeterminate amount the impacts of the shorter season that would occur if a 10-percent reduction in recreational red snapper effort and landings due to hurricane effects is not assumed in the determination of season length.

For the commercial red snapper sector, reductions in profits, as measured by changes in net operating revenue to owners, captains, and crew, are expected to result from revenue losses associated with lower snapper harvests. Net operating revenue losses due to the commercial quota reduction would be mitigated by the action to lower the commercial size limit. The impact analysis for the commercial red snapper sector assumed the fishery was operating under an individual fishing quota program (IFQ), which was implemented in January 2007. Under the IFQ, the number of vessels operating in the fishery is expected to decline substantially as quota shares are consolidated. However, since the IFQ program has only recently been implemented, substantive data on the expected contraction is not yet available to indicate the size and type of fleet that will ultimately occur. Therefore, analysis of the quota reduction impacts assumed the fleet would contract to homogenous fleets of a specific vessel size and accompanying operational characteristics, with the resultant fleet comprised of either more small vessels (35 ft (10.7 m)) or fewer large vessels (65 ft (19.8 m)).

Under the status quo commercial quota of 4.65 million lb (2.14 million kg), for the smallest (35 ft (10.7 m)) and largest (65 ft (19.8 m)) vessel length class considered, the fleet would be composed of either ninety-five 35-ft (10.7-m) vessels or thirty-nine 65-ft (19.8-m) vessels. The average annual net operating revenue per vessel within each vessel size class was estimated at $274,000 and $667,000, respectively. Under the proposed 2.55 million lb (1.16 million kg) commercial quota, projected losses in net operating revenues to owners, captains, and crew in the commercial sector are estimated to be approximately $11.5 million. The fleet would be composed of either fifty-two 35-ft (10.7-m) or twenty-two 65-ft (19.8-m) vessels, representing a reduction of either forty-three 35-ft (10.7-m) vessels or seventeen 65-ft (19.8-m) vessels. For each of these potential fleets, the corresponding average net operating revenue for remaining vessels was estimated at $278,000 and $665,000, respectively. Average short-term net operating revenue losses per vessel are therefore estimated at $121,000 and $295,000 for the 35-ft (10.7-m) and 65-ft (19.8-m) vessel classes, respectively.

The proposed commercial quota reduction is also expected to adversely impact dealers and processors involved in the red snapper trade. Although substantial decreases in revenues collected from domestic red snapper are anticipated, the lack of firm-level gross revenues and profit data precludes quantification of the expected losses. To mitigate the adverse economic impacts that would result from the proposed 45-percent decrease in the commercial quota, dealers and processors may increase their reliance on imported snapper and their use of other reef fish species as substitutes.

Preventing captain and crew from retaining a red snapper bag limit while on charter is not expected to affect the profitability of for-hire operations because the sale of recreational reef fish landings is already prohibited. The proposed requirement for all persons aboard reef fish vessels to use non-stainless steel circle hooks (when using natural baits), venting tools, and dehooking devices is expected to result in minimal impacts on the profitability of small entities because of the current widespread use of circle hooks, their competitive pricing, and the availability of dehooking devices and venting tools for less than $15 each.

The management measures considered in this proposed rule do not affect the reporting or record-keeping requirements for reef fish and shrimp vessels, dealers, or processors. This proposed action does not require additional records or report preparation.

Four alternatives, including the status quo, were considered for the action to set TAC and, thus, establish the recreational and commercial quotas in the red snapper fishery. Three of the alternatives include multiple options and sub-options to manage the recreational fishery under the respective TACs and quotas. The first alternative, the status quo, would not be consistent with assumptions related to expected reductions in directed and bycatch mortality rates and would not, as indicated by the March 12, 2007 Court Opinion ( Coastal Conservation Association v. Gutierrez et al. , Case No. H-05-1214, consolidated with Gulf Restoration Network et al. , v. Gutierrez et al. , Case No. H-05-2998), be associated with a sufficient probability of the red snapper rebuilding plan's success. If implemented, the status quo alternative would result in drastic TAC and quota reductions in subsequent years and, thus, greater adverse economic impacts during that time in order for the resource to continue on the designated recovery path.

The second alternative to the proposed TAC action would have reduced the red snapper TAC to 7.0 million lb (3.175 million kg), with resultant commercial and recreational quotas of 3.57 and 3.43 million lb (1.62 and 1.44 million kg), respectively. This alternative has the potential of generating, depending upon the sub-option selected, lower short-term adverse economic impacts than the proposed action. However, a 7.0 million lb (3.175 million kg) TAC is neither consistent with the current mortality reduction assumptions nor is it in accordance with the findings of the recent Court Opinion. Like the status quo, this alternative would require greater TAC reductions in subsequent years, thereby generating greater adverse economic impacts over that time than the proposed rule.

The third alternative to the proposed TAC action would have reduced the red snapper TAC to 3.0 million lb (1.36 million kg), with resultant commercial and recreational quotas of 1.53 and 1.47 million lb (0.69 and 0.67 million kg), respectively. This alternative would have reduced the TAC and quotas more than necessary to end overfishing within the specified time period and would be expected to result in an overly restrictive management approach with unnecessary and greater adverse economic impacts than the proposed rule.

Three alternatives, including the proposed status quo action and the alternative proposed 10-percent reduction, were considered for the action addressing post-hurricane effort and landings reduction. Although some post-hurricane reduction in effort and landings is demonstrated by available data, the reductions are not consistent across the entire fishery and are not expected to persist as the industry recovers. The proposed action could potentially result in a shorter season than necessary to end overfishing, thereby increasing short-term adverse economic impacts. The alternative proposed action, a 10-percent reduction in post-hurricane effort in the red snapper fishery, would extend the fishing season and yield greater short-term economic benefits than the proposed action. However, this reduction may not be supported by available data and may therefore result in a failure to meet conservation goals, resulting in long-term negative economic impacts relative to the proposed action. The alternative to the proposed actions would assume a 25-percent reduction in post-hurricane effort and landings. This alternative, which would result in a longer season than the proposed action, would result in greater short-term economic benefits than the proposed action. However, a 25-percent reduction is not supported by available data, is believed to be an excessive assumption, and would be expected to result in a failure to meet conservation goals, resulting in substantial long-term negative economic impacts relative to the proposed action.

Two alternatives, including the status quo, were considered for the captain and crew bag limit action. Analyses indicate that under the proposed action to reduce the captain and crew bag limit to zero, the recreational red snapper fishing season could remain open 4-16 days longer relative to the status quo. The status quo alternative would require more restrictive measures on recreational anglers (i.e., shorter open season, lower bag limit) to achieve rebuilding goals, because the fish retained by the captain and crew would represent an additional source of mortality that would have to be factored into harvest controls. These more restrictive measures would be expected to result in greater reductions in trip demand than the proposed angler restrictions, resulting in increased reductions in for-hire profits and angler value than the proposed action.

Three alternatives, including the status quo, were considered for the commercial red snapper minimum size limit. The first alternative to the proposed action, the status quo, would be expected to result in continued unnecessary bycatch mortality and would not, therefore, meet the Council's objectives. The proposed 13-inch (33-cm) minimum size limit in the commercial sector would be expected to result in decreased economic impacts to the fishery and associated industries due to anticipated increases in the operational efficiency of commercial vessels and a potential price premium for smaller fish. The third alternative would eliminate the commercial minimum size limit. Eliminating the commercial size limit would exacerbate user conflicts between the commercial and recreational sectors since the recreational sector would have a 16-inch (41-cm) minimum size limit, while the commercial sector would not have any minimum size limit. Further, since no commercial market is known to exist for red snapper smaller than 12 inches (30 cm), no additional benefits would be expected to accrue to the commercial sector, and total economic impacts to the commercial sector would be expected to be comparable to those of the proposed action.

Three alternatives, including the status quo, were considered for the gear requirement action. The two alternatives encompassing gear requirements contained options that specified the fisheries over which the requirements would apply. The proposed action would require the use of non-stainless steel circle hooks when using natural baits, and require the use of venting tools and dehooking devices from all participants in the reef fish fisheries of the Gulf of Mexico. By reducing bycatch and bycatch mortality in the red snapper and reef fish fisheries, the proposed action would contribute to improving the likelihood of success of the red snapper rebuilding plan and is expected to result in long-term net economic benefits. The sub-options that reduced the fisheries to which the proposed gear requirements would apply would be expected to result in less reduction in bycatch mortality and long-term economic benefits than the proposed rule. However, in general, however, little economic impact is anticipated because of the already widespread use of circle hooks and the fact that venting/dehooking devices are relatively inexpensive (less than $15 each).

The first alternative to the proposed gear action would not impose any new gear requirements on fishermen and would not, in the short term, result in any direct adverse economic impacts. However, this alternative would not contribute to improving the likelihood of success of the red snapper rebuilding plan. Relative to the proposed action, this alternative could result in more severe restrictions on fishery participants in the long run and, thus, generate greater adverse economic impacts.

The second alternative and associated fishery sub-options to the proposed gear action would specify only a minimum hook size. Compared to the proposed action, this alternative would be less effective in reducing bycatch and bycatch mortality. As a result, in the long run, it would be expected to result in smaller economic benefits than the proposed action.

Six alternatives, including the status quo, were considered for the bycatch reduction target in the commercial shrimp fishery. The status quo would not have established a bycatch reduction target, would not ensure consistent reductions in bycatch fishing mortality on juvenile red snapper in the shrimp fishery, and would not be consistent with the 2005 SEDAR assessment recommendations to further reduce bycatch fishing mortality rates on the red snapper stock. The proposed action, which would establish a target reduction of shrimp trawl bycatch mortality on red snapper 74 percent less than the benchmark years of 2001-2003, is consistent with the proposed quotas and an increased probability of the red snapper rebuilding plan's success. The proposed action, which also specifically outlines the future progression of the bycatch mortality reduction target if overfishing is successfully ended by 2010 based upon review of status reports and other relevant information, would be an administrative action with no expected direct adverse economic effects.

The second and third alternatives to the proposed bycatch reduction target would establish lower reduction targets than the proposed action. Like the proposed action, these alternatives are not expected to result in direct adverse economic impacts. However, the lower targets do not contribute sufficiently to increasing the likelihood of the red snapper rebuilding plan's success and could be expected to require further effort reductions, resulting in more severe management measures in the long run. The fourth alternative to the proposed action would, as the proposed action, establish a 74-percent reduction in shrimp trawl bycatch mortality on red snapper, but would not specify changes to the target or the method by which the target might be adjusted in the future. Similarly, the fifth alternative to the proposed action would establish a 74-percent reduction in shrimp trawl bycatch mortality on red snapper, but would also explicitly link future adjustments to the bycatch reduction target to red snapper stock assessment updates.

Four alternatives, including the status quo, were considered for the action to potentially establish fishing restrictions for the EEZ shrimp fishery in the Gulf of Mexico. The first alternative to the proposed action, the status quo, would not establish potential fishing restrictions for the Gulf shrimp fishery. The status quo would not result in direct or indirect adverse economic impacts because potential restrictions would not be established for the shrimp fishery. However, if status quo effort reductions in the fishery are not sufficient to achieve target goals, this alternative may result in more severe future restrictions and potentially greater adverse economic impacts than the enactment of potential effort restrictions at this time.

The proposed action would, if necessary, establish a seasonal closure beginning on the same start date as the closure of the EEZ off Texas in the 10-to 30-fathom (18- to 55-m) zone of selected areas within statistical zones 10-21 in the Gulf of Mexico. This measure, which would ensure that target reductions in shrimp trawl bycatch mortality are met, is consistent with the proposed quotas, and would contribute to increasing the likelihood of the red snapper rebuilding plan's success. The proposed action is administrative in nature and thus would not be expected to result in any direct economic effects. Direct economic impacts would only accrue if, in the future, it is determined that the proposed bycatch reduction target has not been met and thus a seasonal closure is necessary. The direct economic effects of the closure would be analyzed at that time, as appropriate.

The second and third alternatives to the proposed action would also establish seasonal closures, as necessary, in the 10 to 30-fathom (18- to 55-m) zone of selected areas within statistical zones 10-21 in the Gulf of Mexico but would consider alternative time frames for the closures. As with the proposed action, these alternatives are administrative in nature and thus would not be expected to result in any direct economic effects. Direct economic impacts would only accrue if, in the future, it is determined that the proposed bycatch reduction target has not been met and thus a seasonal closure is necessary. However, compared to the long-term benefits expected to accrue to the red snapper fishery from the proposed action, smaller long-term economic benefits to the red snapper fishery are expected to result from these alternatives. Greater positive impacts associated with the proposed action are attributable to the specified starting date of a potential closure, which would coincide with the movement of age 1 snapper from shrimp grounds to larger structures.

Two alternatives, including the status quo, were considered for the action to establish a framework procedure to adjust effort in the commercial shrimp fishery. The second alternative would establish a framework procedure. The proposed action, which would allow the Regional Administrator to implement closures based upon annual shrimp effort assessments conducted by the Southeast Fisheries Science Center, is expected to be the quickest and most efficient approach to establishing recommended closures. Two other options were considered under the second alternative. These options would establish less expedient means of implementing recommended closures. Direct adverse economic impacts would not be expected to result from the alternatives included in this action because the establishment of a framework procedure to adjust effort in the commercial shrimp fishery is an administrative action.

For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows: