Later in this preamble under the Additional Information section, the FAA discusses how you can comment on this proposal and how the agency will handle your comments. Included in this discussion is related information about the docket, privacy, and the handling of proprietary or confidential business information. The FAA also discusses how you can get a copy of this proposal and related rulemaking documents.

The FAA's authority to issue rules on 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 proposed under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, the FAA is charged with promoting safe flight of civil aircraft in air commerce by prescribing minimum standards required in the interest of safety for the design and performance of aircraft; regulations and minimum standards in the interest of safety for inspecting, servicing, and overhauling aircraft; and regulations for other practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it would prescribe—

• New safety standards for the design and performance of certain transport category airplanes and aircraft engines; and

• New safety requirements that are necessary for the design, production, and operation of those airplanes, and for other practices, methods, and procedures relating to those airplanes and engines.

The FAA proposes to revise certain regulations in Title 14, Code of Federal Regulations (14 CFR) part 25 (Airworthiness Standards: Transport Category Airplanes) and part 33 (Airworthiness Standards: Aircraft Engines) related to the certification of transport category airplanes and turbine aircraft engines in icing conditions. We also propose to create new regulations: § 25.1324—Angle of attack systems; § 25.1420 SLD icing conditions; part 25, appendix O (SLD icing conditions); part 33, appendix C (this will be intentionally left blank as a placeholder); and part 33, appendix D (Mixed phase and ice crystal icing conditions). To improve the safety of transport category airplanes operating in SLD, mixed phase, and ice crystal icing conditions, the proposed regulations would:

• Expand the certification icing environment to include freezing rain and freezing drizzle.

• Require airplanes most affected by SLD icing conditions to meet certain safety standards in the expanded certification icing environment, including additional airplane performance and handling qualities requirements.

• Expand the engine and engine installation certification, and some airplane component certification regulations (for example, angle of attack and airspeed indicating systems), to include freezing rain, freezing drizzle, ice crystal, and mixed phase icing conditions. For certain cases, a subset of these icing conditions is proposed.

The benefits and costs are summarized below. The estimated benefits are $405.6 million ($99.5 million present value). The total estimated costs are $71.0 million ($54.0 million present value). On an annualized basis, for the time period 2012-2064, the benefits are $7.0 million, and the costs are $3.8 million.

In the 1990s, the FAA became aware that the types of icing conditions considered during the certification of transport category airplanes and turbine aircraft engines needed to be expanded to increase the level of safety during flight in icing. The FAA determined that the revised icing certification standards should include supercooled large drops (SLD), mixed phase, and ice crystals. 1

Safety concerns about the adequacy of the icing certification standards were brought to the forefront of public and governmental attention by a 1994 accident in Roselawn, Indiana, involving an Avions de Transport Regional ATR 72 series airplane. The FAA, Aerospatiale, the French Direction Général de l'Aviation Civile, Bureau Enquete Accident, the National Aeronautics and Space Administration, the National Transportation Safety Board (NTSB), and others conducted an extensive investigation of this accident. These investigations led to the conclusion that freezing drizzle conditions created a ridge of ice on the wing's upper surface aft of the deicing boots and forward of the ailerons. It was further concluded that this ridge of ice contributed to an uncommanded roll of the airplane. Based on its investigation, the NTSB recommended changes to the icing certification requirements.

The certification requirements for icing conditions are specified in part 25, appendix C. The atmospheric condition (freezing drizzle) that contributed to the Roselawn accident is currently outside the icing envelope for certifying transport category airplanes. The term “icing envelope” is used within part 25, appendix C, and this NPRM to refer to the environmental icing conditions within which the airplane must be shown to be able to safely operate. The term “transport category airplanes” is used throughout this rulemaking document to include all airplanes type certificated to part 25 regulations.

Another atmospheric icing condition that is currently outside the icing envelope is freezing rain. The FAA has not required airplane manufacturers to show that airplanes can operate safely in freezing drizzle or freezing rain conditions. These conditions constitute an icing environment known as supercooled large drops (SLDs).

As a result of this accident and consistent with related NTSB recommendations  2 the FAA tasked the Aviation Rulemaking Advisory Committee (ARAC), 3 through its Ice Protection Harmonization Working Group (IPHWG), to do the following:

• Define an icing environment that includes SLDs.

• Consider the need to define a mixed phase icing environment (supercooled liquid and ice crystals).

• Devise requirements to assess the ability of an airplane to either safely operate without restrictions in SLD and mixed phase conditions or safely operate until it can exit these conditions.

• Study the effects icing requirement changes could have on §§ 25.773, Pilot compartment view; 25.1323, Airspeed indicating system; and 25.1325, Static pressure systems.

• Consider the need for a regulation on ice protection for angle of attack probes.

This proposed rule is based on the ARAC's recommendations to the FAA. Terms used in this notice of proposed rulemaking (NPRM) are defined in Appendix 1 of this preamble.

Currently, the certification regulations applicable to transport category airplanes for flight in icing conditions require that: “The airplane must be able to operate safely in the continuous maximum and intermittent maximum icing conditions of appendix C.”  4 The certification regulations also require minimum performance and handling qualities in these icing conditions and methods to detect airframe icing and to activate and operate ice protection systems. 5 Icing regulations applicable to engines are in §§ 33.68 and 33.77. Operating regulations in parts 91 (General Operating and Flight Rules) and 135 (Operating Requirements: Commuter and On Demand Operations) address limitations in icing conditions for airplanes operated under these parts. 6 Part 121 (Operating Requirements: Domestic, Flag and Supplemental Operations) addresses operations in icing conditions that might adversely affect safety and requires installing certain types of ice protection equipment and wing illumination equipment. 7

Some of the part 25 and 33 regulations specify that the affected equipment must be able to operate in some or all of the icing conditions defined in part 25, appendix C. Other regulations within these parts do not specify the icing conditions that must be considered for airplane certification, but, historically, airplane certification programs have only considered icing conditions that are defined in appendix C.

Appendix C addresses continuous maximum and intermittent maximum icing conditions within stratiform and cumuliform clouds ranging from sea level up to 30,000 feet. Appendix C defines icing cloud characteristics in terms of mean effective drop diameters, liquid water content, temperature, horizontal and vertical extent, and altitude. Icing conditions that contain drops with mean effective diameters that are larger than the cloud mean effective drop diameters defined in appendix C are typically referred to as freezing drizzle or freezing rain. Icing conditions containing freezing drizzle and freezing rain are not currently considered when certifying an airplane's ice protection systems. Because the larger diameter drops typically impinge farther aft on the airfoil, exposure to these conditions can result in ice accretions aft of the ice protection area, which can negatively affect airplane performance and handling qualities.

Likewise, mixed phase (supercooled liquid and ice crystals) and 100% ice crystal icing conditions are not currently considered when certifying an airplane's ice protection systems. Exposing engines and externally mounted probes to these conditions could result in hazardous ice accumulations within the engine that may result in engine damage, power loss, and loss of or misleading airspeed indications. The certification regulations for transport category airplanes and engines do not address the safe operation of airplanes in SLD, mixed phase, or ice crystal icing conditions and the operating rules do not specifically prohibit operations in these conditions.

The NTSB issued NTSB Safety Recommendation Numbers A-96-54  8 and A-96-56  9 as a result of the Roselawn accident previously discussed. This rulemaking activity partially addresses the NTSB recommendations because there are separate rulemaking activities associated with revisions to 14 CFR part 23 regulations for small airplanes and 14 CFR part 121 operational regulations. The NTSB recommendations are as follows:

Revise the icing criteria published in 14 Code of Federal Regulations (CFR), parts 23 and 25, in light of both recent research into aircraft ice accretion under varying conditions of liquid water content, drop size distribution, and temperature, and recent developments in both the design and use of aircraft. Also, expand the appendix C icing certification envelope to include freezing drizzle/freezing rain and mixed water/ice crystal conditions, as necessary. (Class II, Priority Action) (A-96-54) (Supersedes A-81-116 and—118)

Revise the icing certification testing regulation to ensure that airplanes are properly tested for all conditions in which they are authorized to operate, or are otherwise shown to be capable of safe flight into such conditions. If safe operations can not be demonstrated by the manufacturer, operational limitations should be imposed to prohibit flight in such conditions and flightcrews should be provided with the means to positively determine when they are in icing conditions that exceed the limits for aircraft certification. (Class II, Priority Action) (A-96-56)

The ARAC's Ice Protection Harmonization Working Group (IPHWG) submitted additional part 121 icing rulemaking recommendations to the FAA that may lead to future rulemaking, but do not directly impact this NPRM. Those recommendations would improve airplane safety when operating in icing conditions. The recommendations would:

• Address when ice protection systems must be activated.

• Require some airplanes to exit all icing conditions after encountering large drop icing conditions conducive to ice accretions aft of the airframe's protected area.

The proposed new AC and revisions to existing ACs would provide guidance material for one acceptable means, but not the only means, of demonstrating compliance with the proposed regulations contained in this NPRM. The guidance provided in these documents is directed at airplane manufacturers, modifiers, foreign regulatory authorities, and FAA transport airplane type certification engineers, flight test pilots, and their designees. The proposed ACs will be posted on the “Aircraft Certification Draft Documents Open for Comment” Web site, http://www.faa.gov/aircraft/draft_docs, after this NPRM is published in the Federal Register

For advisory material related to this NPRM, the FAA is:

• Developing a new AC 25-xx, Compliance of Transport Category Airplanes with Certification Requirements for Flight in Icing Conditions.

• Revising AC 20-147, Turbojet, Turboprop, and Turbofan Engine Induction System Icing and Ice Ingestion.

• Revising AC 25-25, Performance and Handling Characteristics in the Icing Conditions Specified in Part 25, Appendix C.

• Revising AC 25.629-1A, Aeroelastic Stability Substantiation of Transport Category Airplanes.

• Revising AC 25.1329-1B, Approval of Flight Guidance Systems.

The FAA proposes to revise certain regulations in parts 25 and 33 related to the certification of transport category airplanes and turbine aircraft engines in icing conditions.

We also propose to create a new: § 25.1324—Angle of attack systems; § 25.1420—Supercooled large drop icing conditions; part 25, appendix O (supercooled large drop icing conditions; part 33, appendix C (intentionally left blank); and part 33, appendix D (Mixed phase and ice crystal icing conditions). Part 33, appendix C, is intentionally left blank and retained as a placeholder for non-icing related regulations so that part 33, appendix C, would not be confused with the icing conditions defined in part 25, appendix C.

To improve the safety of transport category airplanes operating in SLD, mixed phase, and ice crystal icing conditions, the proposed regulations would:

• Expand the certification icing environment to include freezing rain and freezing drizzle.

• Require airplanes most affected by SLD icing conditions (transport category airplanes with a maximum takeoff weight less than 60,000 pounds or with reversible flight controls) to meet certain safety standards in the expanded certification icing environment, including additional airplane performance and handling qualities requirements.

• Expand the engine and engine installation certification, and some airplane component certification regulations (for example, angle of attack and airspeed indicating systems) to include freezing rain, freezing drizzle, ice crystal, and mixed phase icing conditions. For certain cases, a subset of these icing conditions is proposed.

The ARAC's IPHWG reviewed icing events involving transport category airplanes and found accidents and incidents that are believed to have occurred in icing conditions that are not addressed by the current regulations. The icing conditions resulted in flightcrews losing control of their aircraft and, in some cases, engine power loss. The review found hull losses and fatalities associated with SLD conditions, but not for ice crystal and mixed phase conditions. However, there have been 14 documented cases of ice crystal and mixed phase engine power loss events between 1988 through 2009. Of those events, there were 13 occurrences of multi-engine power loss events. Fifty percent of those events were defined as “aircraft level events,” since they occurred on multiple engines installed on the same airplane. Two of these aircraft level events resulted in diversions.

The incident history also indicates that flightcrews have experienced temporary loss of or misleading airspeed indications in icing. Airspeed indications on transport category airplanes are derived from the difference between two air pressures—the total pressure, as measured by a pitot tube mounted somewhere on the fuselage, and the ambient or static pressure, as measured by a static port. The static port may be flush mounted on the airplane fuselage or co-located on the pitot tube. When the static and pitot systems are co-located, the configuration is referred to as a pitot-static tube. Static ports are not prone to collecting ice crystals, either because of their flush mounted locations or their overall shape.

Due to the way pitot or pitot-static tubes are usually mounted, they are prone to collecting ice crystals. Encountering high concentrations of ice crystals may lead to blocked pitot or pitot-static tubes because the energy necessary to melt the ice crystals can exceed the tubes' design requirements. Pitot or pitot-static tube blockage can lead to errors in measuring airspeed. The regulatory changes which add ice crystal conditions for airspeed indicating systems are intended to apply to either a pitot tube or pitot-static tube configuration.

The IPHWG did not identify any events due to ice accumulations on probes that are used to measure angle of attack, or other angle of attack sensors. However, the IPHWG determined there are angle of attack probe designs that are susceptible to mixed phase conditions.

The IPHWG concluded that the current regulations do not adequately address SLD, mixed phase, and ice crystal conditions. The concerns regarding mixed phase and ice crystal conditions were limited to engines, propulsion installations, airspeed indications, and angle of attack systems. The FAA concurs with the IPHWG's conclusions.

The FAA has issued airworthiness directives (ADs) to address the unsafe conditions associated with operating certain airplanes in severe icing conditions, which can include SLD icing conditions. These ADs are applicable to airplanes equipped with both reversible flight controls in the roll axis and pneumatic deicing boots. The ADs require the flightcrews to exit icing when visual cues are observed that indicate the conditions exceed the capabilities of the ice protection equipment. In addition, for new certifications of airplanes equipped with unpowered roll axis controls and pneumatic deicing boots, the airplanes are evaluated to ensure the roll control forces are acceptable if the airplane operates in certain SLD conditions. However, the scope of these actions is limited because they do not address all transport category airplanes and do not address the underlying safety concern of the unknown performance and handling qualities safety margins for airplanes and engines operating in freezing drizzle, freezing rain, mixed phase, and ice crystal conditions. The IPHWG concluded there is a need to improve the regulations to ensure safe operation of airplanes and engines in these conditions.

Before proposing new rulemaking, the FAA considers alternative ways to solve the safety issue under consideration. Following is a brief discussion of two of the alternatives we considered during deliberations on this proposed rule.

The IPHWG considered the use of terminal area radar and ground-based sensors to identify areas of SLDs so they can be avoided, rather than require certification for operations in SLD. Equipment for detecting and characterizing icing conditions in holding areas is being developed. However, the equipment would have limited coverage area. For areas not covered by terminal area radar and ground-based sensors, airborne radars and sensors are being developed that would identify SLD conditions in sufficient time for avoidance. These ground-based and airborne systems are not mature enough to provide sufficient protection for all flight operations affected by SLD. Even if the equipment was mature, rulemaking would still be necessary to establish safety margins for inadvertent flight into such conditions and to provide an option for applicants to substantiate that the airplane is capable of safe operation in SLD conditions.

The IPHWG considered the use of icing diagnostic and predictive weather tools to avoid SLD rather than certify an airplane to operate in SLD conditions. Tools have been developed that can provide information on icing and SLD potential, but may not report all occurrences of SLD. These experimental tools are available on the Internet and can be used to provide flight planning information guidance for avoidance of SLD conditions. However, rulemaking would still be necessary to establish safety margins for inadvertent flight into such conditions and to provide an option for applicants to substantiate that the airplane is capable of safe operation in SLD conditions.

The proposed appendix O is structured like part 25, appendix C, one part defining icing conditions and one defining ice accretions. Appendix O, part I, would define SLD icing conditions and part II would define the ice accretions that a manufacturer must consider when designing an airplane.

Proposed § 25.1420 would add safety requirements that must be met in SLD icing conditions for certain transport category airplanes to be certified for flight in icing conditions. This change would require evaluating the operation of these airplanes in the SLD icing environment; developing a means to differentiate between different SLD icing conditions, if necessary; and developing procedures to exit all icing conditions.

The proposed regulation would require consideration of the SLD icing conditions (freezing drizzle and freezing rain) defined in a proposed new part 25, appendix O, part I, in addition to the existing part 25, appendix C, icing conditions. Proposed appendix O would include drop sizes larger than those considered by current icing regulations. These larger drops impinge and freeze farther aft on airplane surfaces than the drops defined in appendix C and may affect the airplane's performance, handling qualities, flutter characteristics, and engine and systems operations. The appendix O icing conditions, if adopted, may affect the design of airplane ice protection systems.

The SLD icing conditions described in the proposed appendix O would be those in which the airplane must be able to either safely exit following the detection of any or specifically identified appendix O icing conditions, or safely operate without restrictions. Specifically, the proposed § 25.1420 would allow three options:

• Detect appendix O conditions and then operate safely while exiting all icing conditions (§ 25.1420(a)(1)).

• Safely operate in a selected portion of appendix O conditions, detect when the airplane is operating in conditions that exceed the selected portion, and then operate safely while exiting all icing conditions (§ 25.1420(a)(2)).

• Operate safely in all of the appendix O conditions (§ 25.1420(a)(3)).

As discussed below in the section titled “Differences from the ARAC Recommendations,” the proposed § 25.1420 would apply to airplanes with either: (1) a takeoff maximum gross weight of less than 60,000 pounds, or (2) reversible flight controls.

To establish that an airplane could operate safely in the proposed appendix O conditions described above, proposed § 25.1420(b) would require both analysis and one test, or more as found necessary, to establish that the ice protection for the various components of the airplane is adequate. The words “as found necessary” would be applied in the same way as they are applied in § 25.1419(b). During the certification process, the applicant would demonstrate compliance with the rule using a combination of analyses and test(s). The applicant's means of compliance would consist of analyses and the amount and types of testing it finds necessary to demonstrate compliance with the regulation. The applicant would choose to use one or more of the tests identified in paragraphs § 25.1420(b)(1) through (b)(5). Although the applicant may choose the means of compliance, it is ultimately the FAA that determines whether the applicant has performed sufficient test(s) and analyses to substantiate compliance with the regulation. Similarly, the words “as necessary,” which appear in § 25.1420(b)(3) and (b)(5), would result in the applicant choosing the means of compliance that is needed to support the analysis, but the FAA would make a finding whether the means of compliance is acceptable. If an applicant has adequate data a similarity analysis may be used in lieu of the testing required by § 25.1420(b). For an airplane certified to operate in at least a portion of proposed appendix O icing conditions, proposed § 25.1420(c) would extend the requirements of § 25.1419(e), (f), (g), and (h)  10 to include activation and operation of airframe ice protection systems in the appendix O icing conditions for which the airplane is certified. Proposed § 25.1420(c) would not apply to airplanes certified to proposed § 25.1420(a)(1) because proposed § 25.1420(a)(1) would require a method to identify and safely exit all appendix O conditions.

The proposed appendix O defines SLD conditions. It was developed by the ARAC IPHWG, which included meteorologists and icing research specialists from industry, FAA/FAA Tech Center, Meteorological Services of Canada, National Aeronautics and Space Administration (NASA), and Transport Canada/Transport Development Center. The IPHWG collected and analyzed airborne measurements of pertinent SLD variables, developed an engineering standard to be used in aircraft certification, and recommended that standard to the FAA. The FAA concurs with the recommendation.

The SLD conditions defined in appendix O, part I, include freezing drizzle and freezing rain conditions. The freezing drizzle and freezing rain environments are further divided into conditions in which the drop median volume diameters are either less than or greater than the 40 microns. Appendix O consists of measured data that was divided into drop distributions within these four icing conditions. These distributions were averaged to produce the representative distributions for each condition.

The distributions of drop sizes are defined as part of appendix O. The need to include the distributions comes from the larger amount of mass in the larger drop diameters of appendix O. The water mass of the larger drops affects the amount of water that impinges on airplane components, the drop impingement, icing limits, and the ice buildup shape.

Appendix O provides a liquid water content scale factor that would be used to adjust the liquid water content for freezing drizzle and freezing rain. The scale factor is based on the liquid water contents of continuous freezing drizzle and freezing rain conditions decreasing with increasing horizontal extents.

The ice accretion definitions in proposed appendix O, part II, and the proposed revisions to the performance and handling qualities requirements for flight in icing conditions are similar to those required for flight in appendix C icing conditions. The proposals address the three options allowed by proposed § 25.1420(a). Proposed appendix O, part II, would contain definitions of the ice accretions appropriate to each phase of flight. The proposed appendix O, part II(b), would define the ice accretions used to show compliance with the performance and handling qualities requirements for any portion of appendix O in which the airplane is not certified to operate. The proposed appendix O, part II(c), would define the ice accretions for any portion of appendix O in which the airplane is certified to operate.

Proposed appendix O, part II(d), would define the ice accretion in appendix O conditions before the airframe ice protection system is activated and is performing its intended function to reduce or eliminate ice accretions on protected surfaces. This ice accretion would be used in showing compliance with the controllability and stall warning margin requirements of §§ 25.143(j) and 25.207(h), respectively, that apply before the airframe ice protection system has been activated and is performing its intended function. Even if the airplane is certified to operate only in a portion of the appendix O icing conditions, the ice accretion used to show compliance with §§ 25.143(j) and 25.207(h) must consider all appendix O icing conditions since the initial entry into icing conditions may be into appendix O icing conditions in which the airplane is not certified to operate.

To reduce the number of ice accretions needed to show compliance with § 25.21(g), the proposed appendix O, part II(e), would allow the option of using an ice accretion defined for one flight phase for any other flight phase if it is shown to be more critical than the ice accretion defined for that other flight phase.

Existing § 25.21(g)(1)  11 requires that the performance and handling qualities requirements of part 25, subpart B, with certain exceptions, 12 be met in appendix C icing conditions. 13 Proposed § 25.21(g)(3) would identify the performance and handling qualities requirements that must be met to ensure that an airplane certified to either the proposed § 25.1420(a)(1) or (a)(2) could safely exit icing if the icing conditions of proposed appendix O, for which certification is not sought, are encountered. Such an airplane would not be approved to take off in proposed appendix O icing conditions and would only need to be able to detect and safely exit those icing conditions encountered en route. Therefore, it is proposed that, in addition to the exceptions identified in the existing § 25.21(g)(1), such an airplane would not need to meet certain requirements  14 for appendix O icing conditions.

With one exception, for an airplane certified under proposed § 25.1420(a)(1) or (a)(2), the same handling qualities requirements that must currently be met for flight in appendix C icing conditions are proposed for flight in appendix O icing conditions for which certification is not sought. That exception is § 25.143(c)(1), which addresses controllability following engine failure during takeoff at V 2 . Compliance with that rule would not be necessary since the airplane would not be approved for takeoff in appendix O icing conditions. No justification for a relaxation of other handling qualities requirements could be identified.

The requirements for safe operation in all or any portion of proposed appendix O icing conditions under proposed § 25.21(g)(4) are similar to those currently required for appendix C icing conditions. With one exception, the list of part 25, subpart B requirements that currently do not have to be met for flight in appendix C icing conditions would not have to be met in proposed appendix O icing conditions. The exception is that compliance with § 25.121(a), Climb: One-engine-inoperative would be required for appendix O icing conditions because, unlike for appendix C icing conditions, the FAA cannot justify an assumption that the ice accretion in this flight phase can be assumed insignificant. In practice, it is expected that some applicants may use an operating limitation to prohibit takeoff in appendix O icing conditions. Otherwise, the same rationales behind the requirements are used for both appendix C and appendix O icing conditions. For continued operation in appendix O icing conditions, there should effectively be no degradation in handling qualities, and any degradation in performance should be no greater than that allowed by the regulations for appendix C icing conditions.

In certification programs, both the airplane as a whole and its individual components are evaluated for flight in icing conditions. There are several rules in part 25  15 that contain icing related requirements for specific components. We propose to revise those rules to ensure the airplane can safely operate in the new icing conditions established in this proposed rule.

Section 25.1419 requires that an airplane be able to safely operate in all of the conditions specified in appendix C, whereas the proposed § 25.1420 would not require an airplane to safely operate in all of the appendix O icing conditions. Proposed § 25.1420(a)(1) and (a)(2) only require an airplane to be capable of safely exiting icing conditions after encountering an appendix O icing condition for which that airplane will not be certified. The existing regulations for pilot compartment view, airspeed indication system, and static pressure system  16 contain requirements for operation in icing conditions. These sections would be revised to add requirements for operation in appendix O icing conditions. Section 25.1323, Airspeed indicating system, would also be revised to include and define mixed phase and ice crystal conditions. New proposed § 25.1324 includes an icing requirement for angle of attack systems. This would be similar to the icing requirements for airspeed indication systems. The proposed section would require the angle of attack system to be heated to prevent malfunction in appendices C and O icing conditions and in the mixed phase and ice crystal conditions defined in § 25.1323.

In the proposed revisions to the requirements for pilot compartment view, airspeed indication system, and static pressure system, 17 and the new proposed requirements for angle of attack systems, an airplane certified in accordance with § 25.1420(a)(1) or (a)(2) would not be required to be evaluated for all of appendix O. For airplanes certified in accordance with § 25.1420(a)(1), the icing conditions that the airplane is certified to safely exit following detection must be considered. For airplanes certified in accordance with § 25.1420(a)(2), the icing conditions that the airplane is certified to safely operate in, and to safely exit following detection, must be considered. For airplanes certified in accordance with § 25.1420(a)(3) and for airplanes not subject to § 25.1420, all icing conditions must be considered. Airplanes not certified for flight in icing need not consider appendix O.

The engine induction system icing section (§ 25.1093) and propeller deicing section (§ 25.929) contain requirements for operation in icing conditions. As a conservative approach to ensure safe operation of an airplane in an inadvertent encounter with icing, the existing language in § 25.1093 contains requirements for operation in icing conditions, even for an airplane that is not approved for flight in icing. Since proposed appendix O defines icing conditions that also may be inadvertently encountered, § 25.1093 would be revised to reference appendix O in its entirety. This would maintain the FAA's conservative approach for this section. Section 25.929 (propeller deicing) would also be revised to reference appendix O in its entirety.

Sections 25.929 and 25.1323 generically reference icing instead of specifically mentioning appendix C. Historically, the icing conditions specified in appendix C have been applied to these rules. For clarity, we are revising §§ 25.929 and 25.1323 so they specifically reference appendix C, as well as appendix O. The proposed revisions to icing regulations for pilot compartment view, propellers, engine induction system icing protection, airspeed indication system, static pressure system, and angle of attack system would be applicable to all transport category airplanes to ensure safe operation during operations in icing conditions.

The proposed revisions to § 25.903 would retain the existing regulations and add new subparagraphs to be consistent with the proposed part 33 changes in § 33.68. These revisions would allow for approving new aircraft type certification programs with engines certified to earlier amendment levels. The proposed revisions would make it clear that the proposed part 33 changes would not be retroactively imposed on an already type certified engine design, unless service history indicated that an unsafe condition was present.

The proposed revision to § 25.929 clarifies the meaning of the words “for airplanes intended for use where icing may be expected.” The intent has been for the rule to be applicable to airplanes certified for flight in icing.

The proposed revisions to §§ 25.1093, 33.68, and 33.77 would change the icing environmental requirements used to evaluate engine protection and operation in icing conditions. The reason for these changes is that the incident history of some airplanes has shown that the current icing environmental requirements are inadequate. The effect of the change would be to require an evaluation of safe operation in the revised icing environment. The proposed revision to § 25.1093 restructures paragraph (b) and adds a new Table 1—Icing Conditions for Ground Tests. The proposed rules would require engines and engine installations to operate safely throughout the SLD conditions defined in proposed new part 25, appendix O, and the newly defined mixed phase and ice crystal conditions defined in proposed new part 33, appendix D. 18 The proposed appendix D was developed by the ARAC Engine Harmonization Working Group and the Power Plant Installation Harmonization Working Group, which included meteorologists and icing research specialists from industry, FAA/FAA Tech Center, Meteorological Services of Canada, National Aeronautics and Space Administration (NASA), and Transport Canada/Transport Development Center. The ARAC recommended appendix D and the FAA concurs with the recommendation.

The proposed revision to § 25.1521 would retain the existing regulations and add a new subparagraph that would require an additional operating limitation for turbine engine installations during ground operation in icing conditions defined in § 25.1093(b)(2). That operating limitation would address the maximum time interval between any engine run-ups from idle and the minimum ambient temperature associated with that run-up interval. This limitation is necessary because we do not currently have any specific requirements for run-up procedures for engine ground operation in icing conditions. The engine run-up procedure, including the maximum time interval between run-ups from idle, run-up power setting, duration at power, and the minimum ambient temperature demonstrated for that run-up interval proposed in § 25.1521, would be included in the Airplane Flight Manual in accordance with existing § 25.1581(a)(1) and § 25.1583(b)(1).

The engine run-up procedure from ground idle to a moderate power or thrust setting is necessary to shed ice build-up on the fan blades before the quantity of ice reaches a level that could adversely affect engine operation if ice is shed into the engine. The proposed revision to § 25.1521 would not require additional testing. The ice shedding demonstration may be included as part of the § 33.68 engine icing testing.

The proposed revision to § 25.1533 would establish an operating limitation applicable to airplanes that are not certified in accordance with proposed § 25.1420(a)(1) or (a)(2). The flightcrews of these airplanes would be required to exit all icing conditions if they encounter appendix O icing conditions that the airplane has not been certified to operate in.

The proposed regulations  19 for the airspeed indicating system and angle of attack system would address the operation of those systems in specific mixed phase and ice crystal conditions, as defined in proposed Appendix O. During the drafting of this NPRM the FAA became aware of airspeed indicating system malfunctions in environmental conditions that may not be addressed by these proposed regulations. The FAA is reviewing the malfunctions and is considering the need to change the proposed mixed phase and ice crystal parameters to include freezing rain. The maximum mixed phase and ice crystal parameters that we are considering are those defined in the proposed part 33, appendix D. The freezing rain parameters that we are considering are based on standards some manufacturers have used for airdata probes. The maximum freezing rain parameters that we are considering are:

We consider the mixed phase and ice crystal parameters defined in the proposed part 33, appendix D, plus the freezing rain parameters defined above to be adequate to prevent potential airspeed indicating system malfunctions in these newly defined environmental conditions. We request technical and economic comments on whether the proposed airspeed indicating system and angle of attack system regulations should include these expanded parameters. Based on comments we receive, we may add these parameters to the final rule.

The IPHWG recommended changes to parts 25 and 33 to ensure the safe operation of airplanes and engines in icing conditions. The FAA concurs with the recommendations, but has determined it is necessary to revise to which airplanes the new airplane icing certification requirements in the proposed § 25.1420 would apply. The proposed § 25.1420 in this NPRM would apply to airplanes with either: (1) a takeoff maximum gross weight of less than 60,000 lbs (27,000 kg), or (2) reversible flight controls. An airplane with reversible flight controls in any axis (pitch, roll, or yaw), even if these flight controls are aerodynamically boosted and/or power-assisted, would be considered to have reversible flight controls under this proposed rule. An airplane with flight controls that are irreversible under normal operating conditions, but are reversible following a failure, would not be considered to have reversible flight controls under this proposed rule. Reversible, aerodynamically boosted, and power-assisted flight controls are defined in Appendix 1 to the preamble of this NPRM. The ADs described above in section B. “Prior FAA Actions to address the Safety Concern” are only applicable to airplanes equipped with both reversible flight controls in the roll axis and pneumatic deicing boots.

A group of IPHWG members (Boeing, Airbus, and Embraer, supported by Cessna) held a minority position in their belief that the applicability of the proposed § 25.1420 should exclude airplanes with certain design features. Their rationale for the position is that large transport airplanes still in production have not experienced any accidents or serious incidents as a result of flying in SLD icing conditions. These manufacturers proposed that airplanes having all three of the following design features should be excluded from compliance with § 25.1420:

(1) Gross weight in excess of 60,000 lbs (27,000 kg);

(2) Irreversible powered flight controls; and

(3) Wing leading-edge high-lift devices.

These manufacturers included the gross weight criterion in this list, in part, because size has a direct bearing on an airplane's susceptibility to the adverse effects of ice accretion. The size of an airplane determines the sensitivity of its flight characteristics to ice thickness and roughness. The relative effect of a given ice height (or ice roughness height) decreases as airplane size increases.

The irreversible powered flight controls design feature was chosen, in part, because using irreversible powered flight controls reduces an airplane's susceptibility to SLD conditions. The concern that SLD accretions can produce hinge moment or other anomalous control force/trim effects is not applicable to those systems.

The wing leading-edge high-lift devices design feature was chosen, in part, because, for wings without ice contamination, those devices provide a considerable increase in the maximum lift coefficient (CLmax) compared to fixed leading edges. When wings equipped with those devices are contaminated with ice, they have smaller relative CLmax losses due to ice accretion than wings with fixed leading edges.

The IPHWG majority (Air Line Pilots Association, International (ALPA), Civil Aviation Authority for the United Kingdom (CAA/UK), FAA/FAA Tech Center, Meteorological Services of Canada, National Aeronautics and Space Administration (NASA), SAAB, Transport Canada/Transport Development Center) did not accept the exclusion of airplanes with the three aforementioned design features because one cannot predict with confidence that the past service experience of airplanes with these specific design features will be applicable to future designs. The IPHWG majority recommended applying the new SLD airplane certification requirements proposed in the new § 25.1420 to all future transport category airplane type designs.

The IPHWG majority opposed limiting the applicability of the rule based on airplane gross weight, in part, because the ratio of wing and control surface sizes to airplane weight varies between airplane designs. Therefore, airplane takeoff weight is not a consistent indicator of lifting and control surface size or chord, which are the important parameters affecting sensitivity to a given ice accretion.

Excluding airplanes with irreversible flight controls was opposed, in part, because hinge moment and other anomalous control forces are not the only concern in SLD icing conditions. An irreversible control surface may not be deflected by the SLD accumulation but the aerodynamic efficiency of the control is likely to be degraded by the presence of SLD icing in front of the control surface.

Excluding airplanes with wing leading edge high-lift devices was opposed, in part, because there are many different designs for such devices, which may not all be equally effective in mitigating the negative effects of SLD ice accretions. The designs for those devices include:

• Slats that may be slotted or sealed to the basic wing leading edge, over or under deflected, with deflection and slotting that may be automated as a function of stall warning or airplane angle of attack;

• Krueger flaps that may be slotted or sealed to the wing leading edge, flexed to optimum curvature or conformed to the wing's leading edge lower surface; and

• Vortilons or some other vortex creating devices.

In addition, for transport category airplanes with leading edge high-lift devices, the spanwise extent of ice protection varies from 100 percent for some early turbo-jet airplane slats, to the span of two slats for later airplane designs, to none for Krueger flaps. The variations in the designs lead to varying degrees of aerodynamic benefit. Without defining the specific performance benefits associated with the above designs, the potential safety margins for SLD conditions cannot be determined.

The complete minority and majority positions are discussed in the working group report, which is available in the public docket. 20

In order to propose a rule with the estimated costs commensurate with the estimated benefits, the FAA determined the applicability of the proposed rule should be limited based on service histories of certified airplanes, and the assumption that similar future designs will continue to not experience the safety problems addressed by this proposal. Therefore, the FAA decided to revise the IPHWG rulemaking recommendation by incorporating, in part, the IPHWG minority position to exclude airplanes with certain design features.

The FAA continues to agree with the IPHWG majority position that the presence (or conversely, the absence) of leading edge high lift devices should not be used as a basis for determining the applicability of the proposed § 25.1420. There is insufficient data to conclude either that every type of leading edge high lift device, or that a specific leading edge high lift device design will affect (positively or negatively) an airplane's ability to operate in SLD atmospheric icing conditions. Also, leading edge high lift devices are only deployed in certain phases of flight (for example, takeoff and landing), and their deployment may differ for different flap configurations. For example, a leading edge slat may be sealed in one flap configuration, but slotted (that is, with a gap opened up between the trailing edge of the slat and the wing) in others. Therefore, the applicability of the proposed § 25.1420 is not affected by the presence or absence of leading edge high lift devices.

We request comment on whether this proposed rule, if adopted, should be applied to airplanes larger than 60,000 pounds MTOW or airplanes with other design features whose presence or absence would result in the airplane being susceptible to safety problems while operating in the SLD icing conditions defined in the proposed appendix O, as well as the economic analysis associated with these decisions. 21

This NPRM also differs from the ARAC recommendation by proposing a revision to § 25.1533 for airplanes not certified to operate in all of the SLD atmospheric icing conditions specified in the proposed new appendix O (that is, airplanes certified in accordance with proposed § 25.1420(a)(1) or (a)(2)). The proposal would establish an operating limitation that requires the flightcrews to exit all icing conditions if they encounter appendix O icing conditions in which the airplane has not been certified to operate.

Another difference between this NPRM and the ARAC recommendation concerns an ARAC recommendation to establish separate stall warning margin and controllability requirements using the ice accretion associated with detection of appendix O icing conditions that require exiting all icing conditions. For airplanes that require exiting all icing conditions after encountering certain appendix O icing conditions, the ARAC recommended (and the FAA proposes in this NPRM) stall warning margin and controllability requirements that must be met with the ice accretion existing at the time the airplane exits all icing conditions. The ARAC was concerned that some future airplanes would be incapable of complying with these recommended requirements without including some means to increase the stall warning margin and airplane controllability upon detection of appendix O icing conditions. The ARAC recommended applying less stringent stall warning and controllability requirements with the ice accretion existing at the time appendix O icing conditions are detected, before the means to increase the stall warning margin and airplane controllability becomes effective.

The FAA considers these ARAC recommended requirements to add significant complexity to the proposed rule to address an issue that may not arise. The FAA considers it unlikely that future airplane designs will include means to increase the stall warning margin and airplane controllability upon detection of appendix O icing conditions in addition to the means that are incorporated in many current transport category airplane designs to change the stall warning device activation point upon activation of the ice protection system. Therefore, these ARAC recommendations are not included in this NPRM. If needed, the FAA can issue special conditions, in accordance with § 21.16, to provide adequate safety standards in the unlikely event that such design features are included in a future transport category airplane.

Another difference between this NPRM and the ARAC recommendation concerns the requirements for pilot compartment view, airspeed indication system, angle of attack system and static pressure system. 22 For these rules the ARAC recommendation would have required airplanes certified in accordance with § 25.1420(a)(1) or (a)(2) to consider all appendix O icing conditions. However, the ARAC recommended advisory circular material allowed these airplanes to consider less than the full appendix O icing conditions. The FAA is not proposing that these airplanes must meet the performance and handling qualities requirements for all of the icing conditions specified in appendix O. Therefore, for pilot compartment view, airspeed indication system, angle of attack system and static pressure system, 23 the agency concurs that it would only be necessary to show compliance under the applicable conditions in appendix O.

One goal of the ARAC process is to have a working group achieve consensus on all of the recommendations. The IPHWG did not unanimously agree on the following issues:

1. Whether it is necessary to flight test in natural SLD icing conditions.

2. Whether airplanes with certain design features should be exempt from the recommendation for § 25.1420.

3. Whether it is acceptable to certificate an airplane to a portion of appendix O, as proposed in the recommendation for § 25.1420(a)(2).

4. Whether certain icing related accidents might have been prevented if an accident airplane had complied with the recommendations in the IPHWG report.

A detailed discussion of the IPHWG's minority and majority opinions on these issues is included in the working group report. A copy of the working group report is in the public docket. 24

The FAA predominantly concurred with the ARAC's recommendations, but determined it was necessary to revise the applicability of the recommendation for § 25.1420, as discussed previously.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The information collection requirements associated with this NPRM have been previously approved by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) and have been assigned OMB Control Number 2120-0018.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to comply with International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these proposed regulations.

The European Aviation Safety Agency (EASA) was established by the European Community to develop standards to ensure safety and environmental protection, oversee uniform application of those standards, and promote them internationally. EASA formally became responsible for certification of aircraft, engines, parts, and appliances on September 28, 2003. EASA has a project similar to SLD on its rulemaking inventory and our intent is to harmonize these regulations.

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this proposed rule. We suggest readers seeking greater detail read the full regulatory evaluation, a copy of which we have placed in the docket for this rulemaking.

In conducting these analyses, FAA has determined that this proposed rule: (1) Has benefits that justify its costs; (2) is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866; (3) is “significant” as defined in DOT's Regulatory Policies and Procedures; (4) would not have a significant economic impact on a substantial number of small entities; (5) would not create unnecessary obstacles to the foreign commerce of the United States; and (6) would not impose an unfunded mandate on State, local, or tribal governments, or on the private sector by exceeding the threshold identified above. These analyses are summarized below.

This NPRM would amend the airworthiness standards applicable to certain transport category airplanes certified for flight in icing conditions and the icing airworthiness standards applicable to certain aircraft engines. The affected fleet and categories of benefits and costs are customized to the requirements contained in this proposal. So, depending on the category and type of airplane, the benefits and costs are analyzed over different time periods. It is important for the reader to focus on present value benefits and costs. The total estimated benefits are $405.6 million ($99.5 million present value). The total estimated costs are $71.0 million ($54.0 million present value). On an annualized basis, for the time period 2012-2064, the benefits are $7.0 million, and the costs are $3.8 million. Therefore, the benefits of the proposed rule justify the costs, and the proposed rule is cost beneficial.

• Part 25 airplane manufacturers.

• Engine manufacturers.

• Operators of Affected Equipment.

• Discount rate—7%.

• Costs and benefits are expressed in 2009 dollars and that both costs and benefits start to occur in 2011. We conservatively assume that all certifications are approved one year after the rule is codified (2011), and that production/deliveries begin to occur the following year (2012). Airplane deliveries continue to accumulate until the airplane is out of production and then begin to retire in the 25th year of service. We have customized different fleet types (smaller, medium, larger) based upon the actual historical production cycles and deliveries. The varying periods are based on all the historical data that we have available. The production cycles for smaller airplanes are shorter than the production cycles of larger airplanes, thus the differing time periods.

• Value of an Averted Fatality—$6.0 million.

• Fuel Cost per gallon—$1.92.

The industry, with the FAA, analyzed the SLD events for part 25 certified airplanes. We evaluated the events for applicability and preventability in context with the requirements contained in this proposed rule.

First, we develop an annual risk of a catastrophic SLD event per aircraft and assume a uniform annual likelihood. Next, we multiply the total annual affected aircraft by the annual risk per aircraft. Lastly, we multiply the total annual risk by the estimated cost of an average SLD event. When summed over time, the total estimated benefits are $405.6 million ($99.5 million present value).

The total estimated costs are $71.0 million ($54.0 million present value). We obtained the basis of our cost estimates from the industry. The manufacturers used accompanying advisory circulars (AC) describing acceptable means for showing compliance. The compliance costs are analyzed in context of the part 25 and part 33 certification requirements.

The FAA originally asked ARAC to estimate other operational costs beyond the additional hardware and fuel consumption costs. The additional hardware costs would be for SLD ice detectors that manufacturers would install to be in compliance with the proposed requirements. The additional hardware costs would be accompanied by additional fuel consumption costs from the accompanying weight changes due to the SLD ice detectors. Accordingly, ARAC provided this data to the FAA. However, as we neared completion of our cost analysis for these requirements, we queried individual operators and they informed us that they were already in compliance and there were no additional operational costs beyond fuel and hardware.

As summarized below, the cost categories in the regulatory evaluation incorporate both certification and operational costs. We analyze each cost category separately. The cost categories in this evaluation are the same as those provided by industry to comply with the requirements contained in this proposal. For this analysis, the estimated costs were:

Alternative 1—Make all sizes of aircraft applicable to the proposal. Not all the requirements in this proposal extend to larger transport category aircraft (those with a maximum takeoff weight greater than 60,000 pounds). Under this alternative, the proposed design requirements would extend to all transport category aircraft. This alternative was rejected because this alternative would add significant cost without a commensurate increase in benefits.

Alternative 2—Limit the scope of applicability to small aircraft. Although this alternative would decrease the estimated cost, the FAA believes that medium airplanes have the same risk as small airplanes. The FAA does not want a significant proportion of the future fleet to be disproportionately at risk.

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.

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

Aircraft and Engine Manufacturers would be affected by the requirements contained in this proposal.

For aircraft manufacturers, we use the size standards from the Small Business Administration for Air Transportation and Aircraft Manufacturing specifying companies having less than 1,500 employees as small entities. The current United States part 25 airplane manufacturers include: Boeing, Cessna Aircraft, Gulfstream Aerospace, Learjet (owned by Bombardier), Lockheed Martin, McDonnell Douglas (a wholly-owned subsidiary of The Boeing Company), Raytheon Aircraft, and Sabreliner Corporation. Because all U.S. transport-aircraft category manufacturers have more than 1,500 employees, none are considered small entities.

United States aircraft engine manufacturers include: General Electric, CFM International, Pratt & Whitney, International Aero Engines, Rolls-Royce Corporation, Honeywell, and Williams International. All but one exceeds the Small Business Administration small-entity criteria for aircraft engine manufacturers. Williams International is the only one of these manufacturers that is a U.S. small business. One small entity is not a substantial number.

In addition to the certification cost incurred by manufacturers, operators would incur fuel costs due to the estimated additional impact of weight changes from equipment on affected airplanes. On average, an affected airplane would incur additional fuel costs of roughly $525 per year.

Because this proposed rule would apply to airplanes that have yet to be designed, there would be no immediate cost to small entities. However, as of 2007, there are at least 54 small entity operators with 1,500 or fewer employees who would qualify as small entities.

According to the “Airliner Price Guide,” the average cost of a new aircraft that would incur such expenses is approximately $17 million. The corresponding 3-year average total aircraft operating expenses on an affected per airplane basis was $758,000. The estimated additional cost of $525 would add only 0.07% to the total annual operating expenses. We do not consider this a significant economic impact.

Because this proposed rule would not have a significant economic impact on a substantial number of airplane manufacturers, engine manufacturers or operators, the FAA certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities. The FAA solicits comments regarding this determination.

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

The FAA has assessed the potential effect of this proposed rule and determined that it would impose the same costs on domestic and international entities and thus has a neutral trade impact.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $143.1 million in lieu of $100 million. This proposed rule does not contain such a mandate; therefore, the requirements of Title II do not apply.

The FAA has analyzed this proposed rule under the principles and criteria of Executive Order 13132, Federalism. We determined that this action 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, and, therefore, would not have federalism implications.

Section 1205 of the FAA Reauthorization Act of 1996 (110 Stat. 3213) requires the Administrator, when modifying regulations in Title 14 of the CFR in a manner affecting intrastate aviation in Alaska, to consider the extent to which Alaska is not served by transportation modes other than aviation, and to establish appropriate regulatory distinctions. Because this proposed rule would apply to the certification of future designs of transport category airplanes and their subsequent operation, it could, if adopted, affect intrastate aviation in Alaska. The FAA, therefore, specifically requests comments on whether there is justification for applying the proposed rule differently in intrastate operations in Alaska.

FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this proposed rulemaking action qualifies for the categorical exclusion identified in paragraph 4(j) and involves no extraordinary circumstances.

The FAA has analyzed this NPRM under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). We have determined that it is not a “significant energy action” under the executive order because, while it is a “significant regulatory action,” it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

Executive Order 12866 (58 FR 51735, Oct. 4, 1993) requires each agency to write regulations that are simple and easy to understand. We invite your comments on how to make these proposed regulations easier to understand, including answers to questions such as the following:

• Are the requirements in the proposed regulations clearly stated?

• Do the proposed regulations contain unnecessary technical language or jargon that interferes with their clarity?

• Would the regulations be easier to understand if they were divided into more (but shorter) sections?

• Is the description in the preamble helpful in understanding the proposed regulations?

Please send your comments to the address specified in the ADDRESSES section of this preamble.

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, please send only one copy of written comments, or if you are filing comments electronically, please submit your comments only one time.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.

Do not file in the docket information that you consider to be proprietary or confidential business information. Send or deliver this information directly to the person identified in the FOR FURTHER INFORMATION CONTACT section of this document. You must mark the information that you consider proprietary or confidential. If you send the information on a disk or CD ROM, mark the outside of the disk or CD ROM and also identify electronically within the disk or CD ROM the specific information that is proprietary or confidential.

Under 14 CFR 11.35(b), when we are aware of proprietary information filed with a comment, we do not place it in the docket. We hold it in a separate file to which the public does not have access, and we place a note in the docket that we have received it. If we receive a request to examine or copy this information, we treat it as any other request under the Freedom of Information Act (5 U.S.C. 552). We process such a request under the DOT procedures found in 49 CFR part 7.

You can get an electronic copy of rulemaking documents using the Internet by—

1. Searching the Federal eRulemaking Portal ( http://www.regulations.gov );

2. Visiting the FAA's Regulations and Policies web page at http://www.faa.gov/regulations_policies/ ; or

3. Accessing the Government Printing Office's web page at http://www.gpoaccess.gov/fr/index.html.

You can also get a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the docket number or notice number of this rulemaking.

You may access all documents the FAA considered in developing this proposed rule, including economic analyses and technical reports, from the internet through the Federal eRulemaking Portal referenced in paragraph (1).

The following appendix will not appear in the Code of Federal Regulations.

For the purposes of this preamble, the following definitions are applicable. These definitions of terms are intended for use only with this preamble:

a. Appendix C Icing Conditions: The environmental conditions defined in appendix C of 14 CFR part 25.

b. Appendix O Icing Conditions: The environmental conditions defined in appendix O of 14 CFR part 25.

c. Drizzle Drop: A drop of water measuring 100 µm to 500 µm (0.1-0.5 mm) in diameter.

d. Freezing Drizzle (FZDZ): Supercooled drizzle drops that remain in liquid form and freeze upon contact with objects colder than 0°C.

e. Freezing Rain (FZRA): Supercooled rain drops that remain in liquid form and freeze upon contact with objects colder than 0°C.

f. Icing Conditions: The presence of atmospheric moisture and temperature conducive to airplane icing.

g. Icing Conditions Detector: A device that detects the presence of atmospheric moisture and temperature conducive to airplane icing.

h. Irreversible Flight Controls: Flight controls in the normal operating configuration that have loads generated at the control surfaces of an airplane which are reacted against the actuator and its mounting and cannot be transmitted directly back to the flight deck controls. This term refers to flight controls in which all of the force necessary to move the pitch, roll, or yaw control surfaces is provided by hydraulic or electric actuators, the motion of which is controlled by signals from the flight deck controls.

i. Liquid Water Content (LWC): The total mass of water contained in liquid drops within a unit volume or mass of air, usually given in units of grams of water per cubic meter (g/m 3 ).

j. Mean Effective Diameter (MED): The calculated drop diameter that divides the total liquid water content present in the drop size distribution in half. Half the water volume will be in larger drops and half the volume in smaller drops. This value is calculated, as opposed to being arrived at by measuring actual drop size. The MED is based on an assumed Langmuir drop size distribution. The fact that it is a calculated measurement is how it differs from median volume diameter, which is based on actual drop size.

k. Median Volume Diameter (MVD): The drop diameter that divides the total liquid water content present in the drop distribution in half. Half the water volume will be in larger drops and half the volume in smaller drops. The value is obtained by actual drop size measurements.

l. Mixed Phase Icing Environment: A combination of supercooled liquid and ice crystals.

m. Rain Drop: A drop of water greater than 500 µm (0.5 mm) in diameter.

n. Reversible Flight Controls: Flight controls in the normal operating configuration that have force or motion originating at the airplane's control surface (for example, through aerodynamic loads, static imbalance, or trim tab inputs) that is transmitted back to flight deck controls. This term refers to flight deck controls connected to the pitch, roll, or yaw control surfaces by direct mechanical linkages, cables, or push-pull rods in such a way that pilot effort produces motion or force about the hinge line.

(1) Aerodynamically boosted flight controls: Reversible flight control systems that employ a movable tab on the trailing edge of the main control surface linked to the pilot's controls or to the structure in such a way as to produce aerodynamic forces that move, or help to move, the surface. Among the various forms are flying tabs, geared or servo tabs, and spring tabs.

(2) Power-assisted flight controls: Reversible flight control systems in which some means is provided, usually a hydraulic actuator, to apply force to a control surface in addition to that supplied by the pilot to enable large surface deflections to be obtained at high speeds.

o. Supercooled Large Drops (SLD): Supercooled liquid water that includes freezing rain or freezing drizzle.

p. Supercooled Water: Liquid water at a temperature below the freezing point of 0°C.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend Chapter I of Title 14, Code of Federal Regulations parts 25 and 33 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-2010-0640; Directorate Identifier 2009-NM-142-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 have lengthened the 30-day comment period for proposed ADs that address MCAI originated by aviation authorities of other countries to provide adequate time for interested parties to submit comments. The comment period for these proposed ADs is now typically 45 days, which is consistent with the comment period for domestic transport ADs.

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.

On April 24, 2008, we issued AD 2008-09-22, Amendment 39-15503 (73 FR 23939, May 1, 2008). That AD required actions intended to address an unsafe condition on the products listed above.

Since we issued AD 2008-09-22, the fuel airworthiness limitations have been revised. The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2009-0146, dated July 3, 2009 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

We have changed Table 1 of this AD to fix a typographical error, which is specified in EADS CASA Component Maintenance Manual with Illustrated Parts List 28-21-12, Revision 003, dated June 15, 2007. The title page of that document specifies “Revision 002.” The correct revision level is “Revision 003.”

EADS CASA has issued the following service bulletins:

• EADS CASA Service Bulletin SB-235-21-18, dated August 2, 2007;

• EADS CASA Service Bulletin SB-235-24-20, dated August 2, 2007; and

• EADS CASA Service Bulletin SB-235-28-18, dated August 2, 2007.

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 8 products of U.S. registry.

The actions that are required by AD 2008-09-22 and retained in this proposed AD take about 1 work-hour per product, at an average labor rate of $85 per work hour. Based on these figures, the estimated cost of the currently required actions is $85 per product.

We estimate that it would take about 90 work-hours per product, depending on airplane configuration, to comply with the new basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $61,200, or $7,650 per product, depending on airplane configuration.

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:

Increasing seat belt use in the United States (U.S.) has been a long-standing priority for the National Highway Traffic Safety Administration (NHTSA). When used properly, NHTSA estimates that seat belts (lap/shoulder belts) reduce the risk of fatal injury to front seat passenger car occupants by 45 percent and the risk of moderate-to-severe injury by 50 percent. Seat belts are even more effective for light truck occupants, reducing the fatality risk by 60 percent and the moderate-to-serious injury risk by 65 percent. 1 For rear seat passenger car occupants, seat belts reduce the risk of fatal injury by 44 percent. For rear seat passenger van and sport utility vehicle occupants, seat belts reduce the risk of fatal injury by 73 percent. 2 During the 5-year period from 2004 to 2008, seat belts saved over 75,000 lives. 3 Historically, NHTSA has pursued two strategic approaches for increasing seat belt use: Behavioral programs and vehicle-based technologies.

Behavioral programs aimed at increasing seat belt use have included providing educational and technical assistance to the public, policy-makers and intermediaries on the benefits of seat belt use and the effectiveness of primary seat belt use laws and strengthening existing laws. NHTSA has also worked with the States to encourage high visibility seat belt use enforcement through programs such as safety checkpoints and associated media campaigns. The agency has also worked on national communication plans directed towards media opportunities to support seat belt use mobilization efforts, as well as initiatives that partner with employers and the insurance industry.

In parallel with our behavioral strategies, the agency has also pursued vehicle-based technologies for increasing seat belt use. These include sensors in the seat belt system that can detect seat belt non-use and provide audio/visual warnings or other incentives to encourage unbelted occupants to fasten their seat belts. In this notice we will discuss four different types of vehicle-based technologies: Driver seat belt warning systems, seat belt interlocks, rear seat belt reminder systems (SBRSs) and enhanced SBRSs. 4 For the purposes of this notice, the term rear SBRS does not necessarily limit the system to the requirements of the driver seat belt warning systems that are regulated by Federal Motor Vehicle Safety Standard (FMVSS) No. 208, “Occupant crash protection,” which will be discussed in the following section. However, as further discussed below, there are statutory limitations with respect to our ability to require some types of enhanced SBRSs.

Early driver seat belt warning systems and seat belt interlocks date back to the 1970s, when seat belt use was only 12 to 15 percent. 5 In 1971, NHTSA sought to increase seat belt use by adopting occupant protection options for vehicles manufactured after 1972 that required the use of a SBRS for the front outboard seating positions (36 FR 4600). 6 Then in 1972, NHTSA adopted an occupant protection option for passenger cars manufactured between August 15, 1973 and August 15, 1975, that required an interlock system which would prevent a vehicle from starting if any of the front seat belts were not fastened (37 FR 3911). 7

Contrary to the agency's expectations, the initial vehicle introduction of these systems in the early 1970s was not well received by the public. In particular, continuous buzzers and ignition interlocks annoyed many consumers to the point of disabling or circumventing the systems. 8 As a result of the negative consumer reaction, Congress adopted a provision, as part of the Motor Vehicle and School Bus Safety Amendments of 1974, prohibiting the agency from prescribing a motor vehicle safety standard that requires, or permits as a compliance option, either ignition interlocks designed to prevent starting or operating a motor vehicle if an occupant is not using a seat belt, or a buzzer designed to indicate a seat belt is not in use for a period of more than eight (8) seconds after the ignition was turned to the “start” or “on” position (49 U.S.C. 30124). 9

FMVSS No. 208 was ultimately amended to only require that the driver's seating position be equipped with a seat belt warning system that activates, under circumstances when the driver's seat belt is not buckled, a continuous or intermittent audible signal for a period of not less than 4 seconds and not more than 8 seconds, and a continuous or flashing warning light for not less than 60 seconds after the ignition switch is turned on (39 FR 42692). 10 This provision was more readily accepted by the public and has remained a part of the standard for vehicles manufactured since 1974. Likewise, the Congressional statutory provision of 1974 is still in effect today (49 U.S.C. 30124).

As seat belt use increased to 73 percent in calendar year 2001, 11 Congress directed NHTSA to study the potential benefits of technologies designed to increase seat belt use (through contract with the Transportation Research Board of the National Academy of Sciences (NAS)). 12 The study aimed to determine how current drivers might accept technologies designed to increase seat belt use, and consider whether legislative or regulatory actions were necessary to enable their installation on passenger vehicles.

The study found that enhanced SBRSs that went beyond the required FMVSS No. 208 driver seat belt warning system showed promise for increasing seat belt use. It concluded that the data available at that time provided “strongly converging evidence in support of both the potential effectiveness and consumer acceptance of many new seat belt use technologies, particularly enhanced belt reminder systems.”

The study also made eight recommendations for the continued development of these technologies. One of the recommendations stated that Congress should amend the statute regarding seat belt reminder systems by lifting the restrictions on systems with visual and audible signals that stay activated beyond the initial 8 seconds. It further stated that amending the statute would provide NHTSA more flexibility and the authority to require effective seat belt reminder technologies. 13 It also recommended that if voluntary efforts to install effective SBRSs did not produce sufficient results, NHTSA should mandate the most effective acceptable systems as determined by the current data. In addition, the study recommended that Congress provide NHTSA funding to support a multi-year program of research on the effectiveness of different enhanced SBRSs, because the findings of such research could help establish the scientific basis for regulation should regulation be needed.

Concurrent with the NAS study, NHTSA's Administrator sent letters to vehicle manufacturers in 2002, and again in 2003, encouraging them to enhance their driver seat belt warning systems beyond the minimum required by FMVSS No. 208. In addition, the agency explained through a series of legal interpretations the attributes of various specific enhanced SBRS designs contemplated by vehicle manufacturers that would enable them to comply with FMVSS No. 208. 14

Based on the number of vehicle manufacturer responses, we were pleased that many manufacturers were voluntarily moving in the direction of installing enhanced SBRSs. 15 However, we found that there was a spectrum of enhanced SBRS types that were being introduced into the fleet. Some of the more rudimentary systems had a visual signal that stayed activated until the belt was buckled, some had audible signals that activated beyond the initial 8 seconds, and others had visual signals that stay activated beyond the initial 60 seconds. Some even had audible and visual signals that stay activated for several minutes.

For the most part, these enhanced SBRSs were directed at front seat applications. For the driver position, enhanced SBRSs primarily relied on sensors found in the seat belt buckle and latch assemblies, since the presence of a driver could be assumed. For front seat passengers, some of the more advanced SBRSs relied on the use of existing sensors in the seat, used for one of the advanced air bag compliance options. These could include pressure-sensitive or capacitive sensors in the seat cushions, for example, that were already installed for ensuring the proper deployment or suppression of advanced air bags as required by FMVSS No. 208.

In September 2002, NHTSA also chartered an integrated project team (IPT) to strategically identify innovative solutions and recommend effective strategies in increasing seat belt use. The IPT recommended several strategies for consideration. 16 These included: Continued work on encouraging vehicle manufacturers to voluntarily install enhanced SBRSs, providing consumer information on vehicles equipped with enhanced SBRSs as part of the New Car Assessment Program (NCAP), and continued monitoring and assessment of the effectiveness and acceptability of enhanced SBRSs through research.

In 2004, NHTSA started making enhanced SBRS information available to consumers through the NCAP http://www.safercar.gov Web site. The consumer information explained the functionality of enhanced SBRSs and documented the availability of enhanced SBRS for each vehicle model on the http://www.safercar.gov Web site. We have continued to collect and disseminate the information in the years since. Currently in the U.S., 479 vehicle models out of 493 were reported by their manufacturers as having a SBRS that went beyond the minimum performance requirements of FMVSS No. 208 according to the model year (MY) 2010 Buying a Safer Car information. Currently the agency requests information about the seating positions that have SBRSs and if the SBRS signal time exceeds that required by FMVSS No. 208. It was reported that 372 of the 493 vehicle models have a SBRS for the right front passenger seat, and 416 of the 493 vehicle models have a SBRS signal (audio/visual/or both) that stays active beyond the FMVSS No. 208 requirement. As Volvo started introducing rear SBRSs in the U.S. in 2009, NHTSA expanded its data collection efforts to include vehicle models with rear SBRS data. In the MY 2010 Buying a Safer Car information, Volvo remains the only vehicle manufacturer that offers rear SBRSs; furthermore, they have become standard equipment in the majority of Volvo's 2010 model year vehicles. 17

In 2005, the Safe, Accountable, Flexible, and Efficient Transportation Equity Act—Legacy for Users (SAFETEA-LU)  18 legislation required that NHTSA evaluate the effectiveness and acceptability of several different types of enhanced SBRSs being offered by a number of manufacturers. In response, the agency initiated a four-phase research study, which is partially completed.

The first phase included an observational study of actual vehicles in the field in which the front seat belt use rates in vehicles with the enhanced SBRSs were compared to rates in comparable vehicles with only the driver seat belt warning required by FMVSS No. 208. The study looked at 20 different enhanced SBRSs systems as well as baseline systems that did not exceed the FMVSS No. 208 requirements. Nine of the 20 enhanced SBRSs were driver only systems. The enhanced systems studied had a variety of enhanced features; some enhancements were related to the visual feedback, i.e., icons and/or text, and others were related to auditory feedback. Similar systems were combined into groups when determining effectiveness. Combining all the effective estimates for all the enhanced SBRSs studied, it was estimated that these systems were associated with increased front seat belt usage of about 3-4 percentage points above front seat belt usage rates for vehicles without enhanced SBRSs. 19

The second phase examined which seat belt reminder characteristics ( e.g., visual, auditory, etc.) most influenced effectiveness and acceptance for drivers. This phase found that all of the enhanced SBRSs were perceived to be more effective in encouraging seat belt use than the driver seat belt warning system required by FMVSS No. 208. The study found a strong positive correlation between subjective effectiveness and annoyance. Systems with more aggressive reminder displays and more frequent repetition patterns were perceived to be the most effective. However, no clear consensus existed regarding which systems or displays were most acceptable and the degree to which annoyance was an important attribute of an effective system. 20

The third phase of our research study further analyzed the results of the first and second phases, as well as focused on optimizing the effectiveness and acceptance of enhanced SBRSs. The study found that there is good agreement between the two studies on the association of a greater likelihood of seat belt use with enhanced SBRSs and the importance of including an auditory component to the system. Based on the findings of this phase, a set of recommended system characteristics were presented as part of the report, as well as a proposed rating system for enhanced SBRSs. 21

The final phase, expected to be completed by mid-2010, is focused on the effectiveness and acceptance of enhanced SBRSs in teen drivers and passengers.

In April 2008, a seat belt reminder system for the driver's seat was incorporated into ECE R.16, “Uniform provisions concerning the approval of: safety belts, restraint systems, child restraint systems and ISOFIX child restraint systems for occupants of power-driven vehicles and vehicles equipped with safety belts, restraint systems, child restraint systems and ISOFIX child restraint systems.” The requirements include two levels of warning signals for seat belt non-use. The first level is a visual warning that is at least 4 seconds long that activates when the driver's seat belt is unbuckled and the ignition switch is engaged. An optional audible signal can be added. The second level is a visual and audible signal that is at least 30 seconds long that activates when a driver operates a vehicle with his or her seat belt unbuckled.

Many passenger vehicles in Europe have enhanced SBRSs beyond the minimum required by the European standards. Since 2002, the consumer crash protection program in Europe, the European New Car Assessment Programme (Euro NCAP), has awarded points to a vehicle if it is voluntarily equipped with enhanced SBRSs that fully comply with their protocol requirements. 22

In the Euro NCAP SBRS protocol requirements, seat belt use must be identified for all seating positions at the start of a trip. However, it does not require occupant detection sensors to determine whether a passenger is actually occupying the seat. Separate points are given for the driver, front passenger, and rear passenger seating positions.

For front seats, an audiovisual signal must start when a front seat occupant is unbelted and one of the following events takes place: The engine has been running for 60 seconds, the vehicle has been in forward motion for 60 seconds or 500 meters, or the vehicle has reached a forward speed of 25 km/hr. The signal must be at least 90 seconds long.

For rear seats, a visual signal must start within five seconds of the engine starting or the start of forward motion. The visual signal must be at least 30 seconds long and it must indicate the number of rear seat belts that are in use. For rear seats with occupancy detection, they must meet the same signal requirements as those without occupancy detection except that no signal is required if there are no occupants in the rear passenger seats or if all rear seat occupants are belted. The system may allow the driver to acknowledge the signal for rear seats and switch it off.

Furthermore, when a seat belt experiences a change of status (from buckled to unbuckled), an audiovisual signal is required for front and rear seats.

Japan's National Agency for Automobile Safety and Victim's Aid and Japan's Ministry of Land, Infrastructure and Transport (JMLIT) has initiated a two phase program as part of Japan's New Car Assessment Program (JNCAP) to promote the introduction of enhanced SBRSs for passenger seats. The first phase will identify which vehicles voluntarily meet their enhanced SBRS requirements and make the information available to consumers through their JNCAP pamphlet and website.

The requirements for enhanced SBRSs are similar to that of Euro NCAP. The front seat occupant enhanced SBRS must have a 30 second audible or visual signal that initiates when a front seat occupant is unbelted and one of the following events takes place: The engine has been running for 60 seconds, the vehicle has been in forward motion for 500 meters, or the vehicle has reached a forward speed between 10-25 km/h.

The rear SBRS must have at least a 30 second audible or visual reminder that is directed toward the driver or the unbuckled passenger. The rear SBRS must also indicate to the driver the number of seat belts that are in use. They do not require the rear SBRS to be equipped with occupant detection technology.

The second phase of the program will establish new enhanced SBRSs requirements for JNCAP based on the findings of a study that is currently underway to evaluate human factors and the effectiveness of different types of visual and audible warning signals.

In 1996, Australia's Department of Transport (now the Department of Transport and Regional Services) introduced a new Australian Design Rule (ADR) 69 that required manufacturers to meet certain crash performance criteria in a dynamic full frontal crash. This ADR also adopted a requirement for a driver SBRS that is currently still in place. The driver SBRS comprises of a visual signal that must remain activated for no less than four seconds after the ignition was switched on, or before one of the following events takes place: The engine has been running for 60 seconds, the vehicle has been in forward motion for 500 meters, or the vehicle has reached a forward speed between 25 km/h. The ADR does not require the system to operate if the driver's seat belt is buckled or is withdrawn more than 10 cm from the retractor. The ADR also states that if the system complies with the U.S. FMVSS No. 208, S7.3 that it is deemed compliant with the ADR requirements.

The Australasian New Car Assessment Program (ANCAP) conducts assessments of seat belt reminders in accordance with the protocol issued by Euro NCAP. ANCAP prepared a questionnaire to assist in the assessment of seat belt reminder systems. Manufacturers may submit a completed questionnaire to obtain a provisional assessment of reminder systems by ANCAP. In addition to the Euro NCAP requirements, ANCAP prefers that if the system does not implement occupant detection that a positive indicator, such as a green light, be displayed for each rear seat belt that is being used and that no display lights be shown for unused seat belts. Furthermore, for systems with occupant detection, ANCAP prefers a negative indicator, such as a red light for any seating position that has an occupant that is unbuckled. 23 ANCAP also began applying Euro NCAP's change of status signal requirements for rear seats after January 2008.

On November 21, 2007, Public Citizen and Advocates for Highway and Auto Safety (henceforth referred to as the petitioner) petitioned NHTSA to amend FMVSS No. 208, to require automobile manufacturers to install a SBRS for rear seats of passenger cars and multipurpose passenger vehicles with a gross vehicle weight rating (GVWR) of 4,536 kg (10,000 lbs.) or less. 24

The petitioner stated that SBRSs for rear seats would save hundreds of lives each year and that a large percentage of the lives saved would be children. The petitioner suggested that if rear seat belt usage matched the level of front seats, about 289 lives would be saved each year, and 78 of those would be children between 5 and 18-years-old. The petitioner noted that primary enforcement laws typically do not cover rear seat occupants and claimed that studies have proven that SBRSs for rear seats significantly increase rear passenger seat belt use. The petitioner also stated that requiring SBRSs for rear seats is consistent with former NHTSA administrator, Dr. Jeffrey Runge's, statements on enhanced SBRSs as well as NHTSA's study on the effectiveness of enhanced SBRSs for front seats, and the SAFETEA-LU requirements to increase belt use for all passengers. The petitioner further stated that SBRSs for rear seats are technologically feasible and that they would be less costly if they were required in all vehicles. Lastly, the petitioner stated that the American public desires SBRSs for rear seats.

In analyzing the petition to require SBRSs for rear seats, it became readily apparent that the limiting factor in our benefits estimate is the unknown effectiveness of rear SBRSs. Without this information, the agency cannot make an accurate assessment of how many lives would be saved and injuries reduced by requiring rear SBRSs, and the cost-effectiveness of such systems. In the sections that follow, we preliminarily identify the potential target population, discuss the limitations of our effectiveness estimates, and the potential costs of various rear SBRS technologies. However, as discussed further in this notice, we are seeking comment and information from the public on each aspect of our analysis.

The agency made some preliminary target population estimates in analyzing the petition using the 2008 calendar year as a baseline. In that year, front seat belt usage was 83 percent and rear seat belt usage was 74 percent. 25 According to the Fatality Analysis Reporting System (FARS) data, there were 2,163 rear seat occupants killed that year in motor vehicle crashes. According to the National Automotive Sampling System (NASS) General Estimates System (GES) data, there were another 266,163 MAIS  26 1-5 rear seat occupant injuries that resulted. 27 Of those, 1,442 fatalities and 28,075 MAIS 1-5 injuries were to unrestrained rear seat occupants. 28 These unrestrained occupants are the target population any potential rulemaking on rear SBRS would seek to address.

As previously mentioned, the agency lacks sufficient information on the effectiveness of rear SBRSs. We are not aware of studies that show how effective a warning sent to the driver (and/or front seat passenger) would be in encouraging rear seat occupants to fasten their seat belts. Depending upon the type of rear SBRS implemented, repeated false alarms, for example, could be an annoyance to drivers and consequently reduce its effectiveness. On the other hand, less aggressive systems may not change an occupant's behavior.

In the petitioner's benefits calculations, three hypothetical outcomes were presented that could occur from requiring rear SBRSs:

1. Increased rear seat belt usage to the level of front seat belt usage;

2. Increased rear seat belt usage by 9.1% in light trucks and 12.9% in cars; and

3. Increased rear seat belt usage to 85-90%.

However, for the first outcome to occur, rear seat belt usage would need to increase from 74 to 83 percent to be equivalent to front seat belt usage (based on our 2008 baseline). This would require an increase in rear seat belt usage of 9 percentage points, although front seat enhanced SBRSs are preliminarily estimated to increase front seat belt use by only 3-4 percent. 29 The other two scenarios are more unlikely since they assume higher effectiveness rates for rear SBRSs than are currently achieved for front seat SBRSs. Finally, the petitioner also suggested that benefits would be accrued to front seat occupants if rear seat passengers were buckled up. While we agree, in principle, that front seat occupant risk would be reduced by having rear seat passengers restrained, we have evidence to suggest that these benefits would be small and not a significant proportion of the benefits gained from increases in rear seat belt usage. 30

We will accept written comments and information during this reopened comment period on the proposed designation of critical habitat for the vermilion darter that was published in the Federal Register on December 3, 2009 (74 FR 63366), the draft economic analysis (DEA) of the proposed designation of critical habitat for the vermilion darter, and the amended required determinations provided in this document. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:

(1) The reasons why we should or should not designate areas as “critical habitat” under section 4 of the Endangered Species Act (Act) (16 U.S.C. 1531 et seq. ), including whether there are threats to the vermilion darter from human activity, the degree of which can be expected to increase due to the designation, and whether the benefit of designation would outweigh threats to the species caused by the designation, such that the designation of critical habitat is prudent.

(2) Specific information on:

• The amount and distribution of vermilion darter habitat;

• What areas containing physical and biological features essential to the conservation of the species should be included in the designation and why;

• Special management considerations or protections for the physical and biological features essential to vermilion darter conservation that have been identified in the proposed rule that may be needed, including managing for the potential effects of climate change; and

• What areas not currently occupied by the species are essential to the conservation of the species and why.

(3) Specific information on the vermilion darter and the physical and biological features essential to the conservation of the species.

(4) Any information on the biological or ecological requirements of the species.

(5) Land-use designations and current or planned activities in areas occupied by the species, and their possible impacts on the species and the proposed critical habitat.

(6) Any foreseeable economic, national security, or other potential impacts resulting from the proposed designation and, in particular, any impacts on small entities and the benefits of including or excluding areas that are subject to these impacts.

(7) Whether the benefits of excluding any particular area from critical habitat outweigh the benefits of including that area as critical habitat under section 4(b)(2) of the Act, after considering the potential impacts and benefits of the proposed critical habitat designation.

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

You may submit your comments and materials concerning this proposed rule or DEA by one of the methods listed in the ADDRESSES section.

If you submitted comments or information on the proposed critical habitat rule for the vermilion darter, previously published on December 3, 2009 (74 FR 63366), you do not have to resubmit them. These comments are included in the public record for this rulemaking, and we will fully consider them in the preparation of our final determination.

If you submit a comment via http://www.regulations.gov , your entire comment—including your personal identifying information—will be posted on the website. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. Please include sufficient information with your comments to allow us to verify any scientific or commercial information you include.

Comments and materials we receive, as well as supporting documentation used in preparing the proposed rule and DEA, will be available for public inspection on http://www.regulations.gov , or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service's Mississippi Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ). You may obtain copies of the proposed rule and the DEA on the Internet at http://www.regulations.gov at Docket Number FWS-R4-ES-2009-0079 or by mail from the Mississippi Field Office (see FOR FURTHER INFORMATION CONTACT section).

The vermilion darter ( Etheostoma chermocki ) was listed as endangered under the Act on November 28, 2001 (66 FR 59367). At the time of listing, the Service found that designation of critical habitat was prudent. However, due to budgetary constraints, we did not designate critical habitat at that time. On November 27, 2007, the Center for Biological Diversity filed a lawsuit against the Secretary of the Interior alleging that the Service failed to timely designate critical habitat for the vermilion darter ( Center for Biological Diversity v. Kempthore (07-CV-2928)). In settlement agreement approved by the court on April 25, 2008, the Service agreed to submit to the Federal Register a new prudency determination, and if designation was found to be prudent, a proposed designation of critical habitat, by November 30, 2009, and a final designation by November 30, 2010. The Service determined that critical habitat was prudent for the vermilion darter and published a proposed critical habitat designation on December 3, 2009 (74 FR 63366).

The vermilion darter is a narrowly endemic fish species, occurring in sparse, fragmented, and isolated populations. The species is only known in parts of the upper mainstem reach of Turkey Creek and four tributaries in Pinson, Jefferson County, Alabama (Boschung and Mayden 2004, p. 520). Suitable streams have pools of moderate current alternating with riffles of moderately swift current, and low water turbidity.

The primary threats to the species and its habitat are degradation of water quality and substrate components due to sedimentation and other pollutants, and altered flow regimes from activities such as construction and maintenance activities; impoundments (five within the Turkey Creek and Dry Creek system); instream gravel extractions; off-road vehicle usage; road, culvert, bridge, gas, and water easement construction; and stormwater management (Drennen personal observation 1999-2009; Blanco and Mayden 1999, pp. 18-20). These activities lead to water quality degradation and the production of pollutants (sediments, nutrients from sewage, pesticides, fertilizers, and industrial and stormwater effluents), stream channel instability, fragmentation, and reduced connectivity of the habitat by altering the stream banks and bottoms; degrading the riffles, runs, and pools; and producing changes in the water quantity and flow that are necessary for spawning, feeding, resting, and other life history functions of the species.

We propose to designate approximately 21 kilometers (13 miles) of streams in 5 units as critical habitat for the vermilion darter. The proposed critical habitat is located within the Turkey Creek watershed in Jefferson County, Alabama.

Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting critical habitat are required to consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.

Section 4(b)(2) of the Act requires that we designate critical habitat based upon the best scientific data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species. We have not proposed to exclude any areas from critical habitat. However, the final decision on whether to exclude any areas will be based on the best scientific data available at the time of the final designation, including information obtained during the comment period and information about the economic impact of designation. Accordingly, we have prepared a draft economic analysis concerning the proposed critical habitat designation (DEA), which is available for review and comment (see ADDRESSES section).

The intent of the DEA is to identify and analyze the potential economic impacts associated with the proposed critical habitat designation for the vermilion darter that we published in the Federal Register on December 3, 2009 (74 FR 63366). The DEA describes the economic impacts of all potential conservation efforts for the vermilion darter, some of which will likely be incurred whether or not we designate critical habitat. The economic impact of the proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, considering protections already in place for the species (e.g., under the Federal listing and other Federal, State, and local regulations). The baseline, therefore, represents the costs incurred regardless of whether critical habitat is designated. The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts are those not expected to occur absent the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat, above and beyond the baseline costs; these are the costs we may consider in the final designation of critical habitat when evaluating the benefits of excluding particular areas under section 4(b)(2) of the Act. The analysis forecasts both baseline and incremental impacts likely to occur if we finalize the proposed designation of critical habitat.

The DEA describes economic impacts of vermilion darter conservation efforts associated with the following categories of activity: (1) Costs associated with economic activities, including future development, road construction, wastewater treatment, stream alteration, and water withdrawal; and (2) costs associated with conservation activities, including actions associated with the Vermilion Darter Recovery Plan and activities that aid in preservation of the vermilion darter and the Turkey Creek watershed (e.g., preservation of the Turkey Creek Nature Preserve and the establishment of undeveloped greenways buffering the critical habitat and upstream tributaries). The DEA estimates the baseline costs associated with potential future economic activities and conservation activities for the vermilion darter to be $283,209 annually over the next 25 years, assuming a 7 percent discount rate. The proposed critical habitat designation for the vermilion darter will result in minimal incremental costs because any adverse modification decision would likely be coincident to a jeopardy determination for the same action due to the species' narrow range. Therefore, the only incremental costs are those resulting from the additional administrative costs by the Service and action agency to include an adverse modification finding within the Biological Opinion and Biological Assessment as part of a formal consultation. As a result, the total incremental costs associated with this rule are estimated to be $39.24 annually over the next 25 years, assuming a 7 percent discount rate.

The DEA also discusses the potential benefits associated with the designation of critical habitat. The primary intended benefit of critical habitat is to support the conservation of endangered and threatened species, such as the vermilion darter; however, these efforts preserve ecosystems that provide valuable services to the public and may lead to additional social welfare or market-based benefits. Depending on the nature of the effect, benefits are represented within the DEA either qualitatively, quantitatively, or as a monetary value.

In our December 3, 2009, proposed rule (74 FR 63366), we indicated that we would defer our determination of compliance with several statutes and Executive Orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders became available in the DEA. We have now made use of the DEA data in making this determination. In this document, we affirm the information in our proposed rule concerning: E.O. 12866 ( Regulatory Planning and Review ), the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ), E.O. 12630 (Takings), Executive Order (E.O.) 13132 (Federalism), E.O. 12988 (Civil Justice Reform), the Paperwork Reduction Act, the National Environmental Policy Act, the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), and E.O. 13211 (Energy Supply, Distribution, and Use). However, based on the DEA data, we are amending our required determinations concerning the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ).

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. , as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions), as described below. However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Based on our DEA of the proposed designation, we provide our analysis for determining whether the proposed rule would result in a significant economic impact on a substantial number of small entities. Based on comments we receive, we may revise this determination as part of a final rulemaking.

According to the Small Business Administration, small entities include small organizations, such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term significant economic impact is meant to apply to a typical small business firm's business operations.

To determine if the proposed designation of critical habitat for the vermilion darter would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities, such as residential and commercial development, road construction, wastewater treatment, stream alteration, and water withdrawal. In order to determine whether it is appropriate for our agency to certify that this rule would not have a significant economic impact on a substantial number of small entities, we considered each industry or category individually. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement. Critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies.

If we finalize this proposed critical habitat designation, Federal agencies must consult with us under section 7 of the Act if their activities may affect designated critical habitat. In areas where the vermilion darter is present, Federal agencies are already required to consult with us under section 7 of the Act, due to the endangered status of the species. Consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the same consultation process.

In the DEA, we evaluated the potential economic effects on small entities resulting from implementation of conservation actions related to the proposed designation of critical habitat for the vermilion darter. Since the Service and action agency are the only entity with direct compliance costs associated with the proposed critical habitat designation, this rule will not result in a significant impact on small entities. Please refer to the DEA of the proposed critical habitat designation for a more detailed discussion of potential impacts.

In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. Information for this analysis was gathered from the Small Business Administration, stakeholders, and the Service. For the reasons discussed above, and based on currently available information, we certify that if promulgated, the proposed designation would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.

The primary author of this document is the staff of the Mississippi Fish and Wildlife Office (see ADDRESSES section).

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

For a detailed description of Federal actions concerning the mountain plover, please refer to the February 16, 1999, proposed rule to list the species (64 FR 7587); the December 5, 2002, proposed rule to list the species with a special rule under section 4(d) of the Act (16 U.S.C. 1531 et seq. ) (67 FR 72396); and the September 9, 2003, withdrawal of the proposed rule to list the species (68 FR 53083).

The document we published on September 9, 2003 (68 FR 53083), withdrew the entire proposed rule we published on December 5, 2002 (67 FR 72396), including our proposal to list the species as a threatened species and our proposed special 4(d) rule. The September 9, 2003, document also addressed comments we received on both the 1999 and 2002 proposals to list the mountain plover and summarized threat factors affecting the species. The withdrawal of the proposed rule was based on our conclusion that the threats to the mountain plover identified in the proposed rule were not as significant as previously believed and that currently available data did not indicate that threats to the species and its habitat, as analyzed under the five listing factors described in section 4(a)(1) of the Act, were likely to endanger the species in the foreseeable future throughout all or a significant portion of its range.

On November 16, 2006, Forest Guardians (now WildEarth Guardians) and the Biological Conservation Alliance filed a complaint in the District Court for the Southern District of California challenging the withdrawal of the proposal to list the mountain plover. A settlement agreement between the plaintiffs and the Service was entered by the court on August 28, 2009. As part of the settlement agreement, the Service agreed to reconsider its September 9, 2003, decision to withdraw the proposed listing of the mountain plover (68 FR 53083) and to submit to the Federal Register by July 31, 2010, a document reopening the proposal to list the mountain plover that would also request public comment. It was agreed, that upon publication of the document, the 2003 withdrawal of the proposed rule would be vacated. The Service further agreed to submit a final listing determination for the mountain plover to the Federal Register no later than May 1, 2011.

This document notifies the public that we are reinstating that portion of our December 5, 2002 (67 FR 72396), proposed rule that concerns the listing of the mountain plover ( Charadrius montanus ) as threatened under the Act. We are not reinstating that portion of the proposed rule regarding a proposed special rule under section 4(d) of the Act. We invite public comments on the proposed listing, new information relevant to our consideration of the status of the mountain plover, and comments and information regarding threats to the species and its habitat.

The mountain plover is a small terrestrial shorebird inhabiting open, flat lands with sparse vegetation. It averages 8 inches (21 centimeters) in length. Mountain plovers are light brown above and white below, but lack the contrasting dark breast band common to most other plovers such as the killdeer ( C. vociferus ). Sexes are similar in appearance. Mountain plovers feed on insects, primarily beetles, crickets, and ants. They forage with a series of short runs and stops, feeding opportunistically as they encounter prey. Mountain plovers are migratory, and form pairs and begin courtship on arrival at their breeding grounds. Nests consist of a simple ground scrape. The female usually splits the clutch, typically six eggs, between two nests. The first nest is incubated by the male, the second by the female. Chicks leave the nest within hours of hatching and obtain their own food. Parents stay with chicks until they fledge, which occurs at about 5 weeks of age.

The mountain plover is found on xeric (extremely dry) shrublands, shortgrass prairie, barren agricultural fields, and other sparsely vegetated areas. On grasslands they often inhabit areas with a history of disturbance by burrowing rodents such as prairie dogs ( Cynomys spp.), native herbivores, or domestic livestock. Mountain plovers breed in the western Great Plains and Rocky Mountain States from the Canadian border to northern Mexico. Most breeding occurs in Montana, Wyoming, and Colorado. They winter in similar habitat in California, southern Arizona, Texas, and Mexico. While California's Sacramento, San Joaquin, and Imperial Valleys are believed to support the greatest number of wintering mountain plovers, relatively little is known about their winter distribution in other areas. For additional background on the natural history of the mountain plover, see the account of the species in The Birds of North America (Knopf and Wunder 2006) and our previous Federal Register notices.

The February 16, 1999 (64 FR 7587), proposed rule to list the mountain plover described the life history, ecology, and habitat use of the species; discussed abundance and trend estimates; and provided a description of threats affecting the mountain plover under the five listing factors identified in section 4(a)(1) of the Act. The December 5, 2002 (67 FR 72396), proposal, described as a “supplemental proposal,” provided pertinent new information. Both of the proposed rules concluded that the mountain plover was likely to become an endangered species in the foreseeable future unless measures were taken to reverse its decline. Conservation measures to reverse the decline were discussed in both of the proposals.

The proposals addressed elements contributing to the proposed threatened status of the species, including the following:

(1) Historical and ongoing conversion of grassland in the breeding range;

(2) Cultivated areas in the breeding range acting as potential population sinks;

(3) Historical conversion of grasslands and changing agricultural practices in the winter range;

(4) Effects of range management on mountain plover habitat;

(5) Declines in burrowing mammals and the effect on mountain plover habitat;

(6) Oil, gas, and mineral development in mountain plover habitat;

(7) Federal and State protection and management of the mountain plover;

(8) Mountain plover lifespan and breeding site fidelity as related to persistence of local populations;

(9) Influences of annual weather variation on habitat and breeding success;

(10) Human disturbance;

(11) Control of grasshoppers and other insects that provide a food resource; and

(12) Exposure of mountain plover to pesticides.

Since the closure of the last comment period, new information has become available that is relevant to the status of the mountain plover and its proposed listing as a threatened species. To ensure that our review of the species' status is complete and based on the best available scientific and commercial information available, we request comments on the proposal to list the mountain plover as a threatened species, including all information that relates to the species' status and the proposed listing.

Pertinent information received, developed, or analyzed since the public comment period closed on our December 5, 2002, proposed rule (67 FR 72396) is available for review at the following website: http://www.fws.gov/mountain-prairie/species/birds/mountainplover/ , or by contacting the Field Supervisor, Colorado Ecological Services Office (see FOR FURTHER INFORMATION CONTACT above). Information cited below includes scientific publications, graduate theses and dissertations, and selected unpublished reports that are available on the website referenced above. Additional reports, compilations of data, correspondence, and information also are available on the website. See the website http://www.regulations.gov (Docket No. FWS-R6-ES-2010-0038) for additional comments and information received during the comment period for this proposal.

Three documents provide extensive reviews of the mountain plover and its conservation status:

(1) Mountain Plover ( Charadrius montanus ): a technical conservation assessment (Dinsmore 2003);

(2) Mountain Plover ( Charadrius montanus ) in Birds of North America (Knopf and Wunder 2006); and

(3) Conservation Plan for the Mountain Plover ( Charadrius montanus ), Version 1.0 (Andres and Stone 2009).

The majority of relevant information that has become available since our 2002 proposal to list the mountain plover has resulted from local or Statewide studies on the mountain plover's breeding range. The new information is summarized below.

For Colorado, newly available information includes results from a study that mapped habitat and surveyed breeding adults in a discrete mountain plover population in South Park, Park County (Wunder et al. 2003). The density of mountain plover in occupied habitat in South Park was shown to be high compared to other sites, and the population was estimated at 2,310 adults (Wunder et al. 2003, p. 661). In another Park County study, vegetation structure and forage available in habitat used by mountain plover were assessed (Schneider et al. 2006). Researchers documented differential habitat use between adults with and without broods (Schneider et al. 2006, p. 199), and proposed shrub-grassland edge and insect availability as factors that influence habitat use (Schneider et al. 2006, pp. 200-202).

A study on the plains of eastern Colorado looked at movements and home range sizes of adult mountain plover with broods across three habitat types (Drietz et al. 2005). Results proved similar for black-tailed prairie dog ( C. ludovicianus ) towns, rangeland, and agricultural fields (Drietz et al. 2005, pp. 129-131). A study of mountain plover nesting success in eastern Colorado found that hatching success was similar in native grasslands and agricultural fields, although causes of nest mortality differed between the two habitats (Drietz and Knopf 2007, pp. 684-685).

Another eastern Colorado study investigated types of habitat and habitat quality as related to chick survival and brood movements in mountain plover (Drietz 2009). Chick survival over 30 days was found to be higher on shortgrass habitat occupied by black-tailed prairie dogs than on shortgrass without prairie dogs or on agricultural lands (Drietz 2009, p. 875). Also in the Colorado shortgrass prairie ecosystem, mountain plover numbers were estimated in three habitats: black-tailed prairie dog colonies, grasslands without prairie dogs, and dryland agriculture (Tipton et al. 2009). Mountain plover densities observed on prairie dog colonies were approximately 5 times higher than those found on agriculture and 10 times higher than those found on grasslands without prairie dogs (Tipton et al. 2009, p. 496). The study estimated that there were 8,577 mountain plover in eastern Colorado (Tipton et al. 2009, p. 497).

Knopf (2009) provided an overview of mountain plover studies on the Pawnee National Grasslands (PNG), Weld County, from 1986 to 2007. He described annual population surveys, breeding studies, a burning program designed to enhance habitat, a historical account of mountain plover populations on PNG, and discussed the future of mountain plover on the area. Knopf suggested that mountain plover numbers on the PNG had been in decline since the late 1930s and early 1940s, and that the dramatic decline in the mid-1990s was the abrupt end point of a process of deteriorating habitat, exacerbated by other factors such as wet spring weather and the relocation of breeding mountain plovers to better habitats elsewhere (Knopf 2008, p. 61).

A number of recent breeding studies of mountain plover have been conducted in Montana. Capture-recapture techniques were employed to study the demographics of mountain plover in Phillips County, Montana (Dinsmore et al. 2003). Estimated annual survival rate for juveniles was 0.46 to 0.49 and for adults 0.68; estimated mean life span was 1.92 years (Dinsmore et al. 2003, pp. 1020-1021). The size of the adult mountain plover population closely tracked annual changes in the area occupied by black-tailed prairie dogs (Dinsmore et al. 2003, p. 1024).

A study of the same Phillips County population estimated annual rates of recruitment and population change (Dinsmore et al. 2005). Prairie dog numbers declined sharply in the mid-1990s in response to an outbreak of sylvatic plague (Dinsmore et al. 2005, pp. 1550-1551). Mountain plover numbers decreased significantly, then increased in concert with increases in prairie dogs (Dinsmore et al. 2005, p. 1552).

Childers and Dinsmore (2008) reported results of estimates of density and abundance from 2004 of mountain plover in Phillips and Valley Counties in north-central Montana. The density of mountain plovers was much greater on black-tailed prairie dog colonies than on other habitats. An estimated 1,028 mountain plovers inhabited the region in 2004 (95-percent confidence interval of 903 to 1,153), most on prairie dog colonies (Childers and Dinsmore 2008, p. 706).

A study that included Phillips County, as well as two sites in Colorado, looked at mountain plover nesting in black-tailed prairie dog colonies during recovery from plague and following plague outbreaks (Augustine et al. 2008). Findings indicated that nesting habitat closely tracked the area actively occupied by prairie dogs in a given year. Mountain plover nested within 1 or 2 years after areas were colonized by prairie dogs and nest numbers declined rapidly after prairie dog numbers declined on plague-affected colonies (Augustine et al. 2008, p.7).

Additional studies in north-central Montana examined the influence of various factors on the annual survival of mountain plovers (Dinsmore 2008). The annual survival rate for a juvenile mountain plover was 0.06 at hatching, but it increased with age and increased body mass (Dinsmore 2008, p. 51). The annual survival rate of adults of both sexes ranged from 0.74 to 0.96 yearly (Dinsmore 2008, p. 50). Annual survival proved higher during periods of drought (Dinsmore 2008, p. 52).

Skrade (2008) examined dispersal of juvenile (natal dispersal) and adult mountain plovers (both within-year and between years) in Phillips County. Mean dispersal of adult mountain plovers in consecutive years was 1.71 miles (2.75 kilometers) in males and 2.88 miles (4.64 kilometers) in females (Skrade 2008, pp. 14-15). Plovers with unsuccessful previous nesting attempts moved further on average than birds where previous nesting was successful (Skrade 2008, p. 18).

A Wyoming study located 55 mountain plover nests in grassland or desert scrub habitat in 6 counties (Plumb et al. 2005a). All nest sites were grazed by ungulates and prairie dogs were present at 36 percent of nest sites (Plumb et al. 2005a, pp. 226-227). Nest sites had less grass coverage and shorter vegetation height compared to random plots. Half of the nests were located on elevated plateaus.

Another Wyoming study estimated minimum mountain plover population size in 2003 (Plumb et al. 2005b). Distance sampling was used to estimate breeding mountain plover density in five areas and results were applied to the minimum occupied range Statewide. The minimum population estimate for mountain plover in Wyoming was 3,393 birds (Plumb et al. 2005b, p. 19-20).

Beauvais and Smith (2003) developed a model of mountain plover breeding habitat in shrub-steppe habitat of western Wyoming. They reported that mountain plover presence was negatively related to degree of slope and had a weak positive relationship to cover type (Beauvais and Smith 2003, pp. 92-94). They related favored patches of breeding habitat to poor soil, low precipitation, and wind scour, features that they speculated would be persistent over time, especially on public lands.

Smith and Keinath (2004) provided a species assessment of mountain plover in Wyoming. They reviewed the species' natural history and discussed conservation measures, threats, and future conservation strategies.

In Carbon County, Wyoming, studies since 1994 have documented mountain plover presence at the Foote Creek Rim wind power facility (Young et al. 2007). Mountain plover numbers declined during the 1997 to 2000 period, when 1,333 wind turbines were erected on the area, but have since largely recovered (Young et al. 2007, pp. 16-17). It is not known whether the decline was attributable to displacement caused by the construction work. Carcass searches documented no mountain plover mortalities attributed to turbines. The lowest point of rotor sweep on site (57 feet (17 meters)) was above the typical heights flown by mountain plovers during courtship and breeding (Young et al. 2007, p. 18). Except in migration, mountain plover flights are of low altitude; in a common courtship display, a male flies to a height of approximately 16 to 33 feet (5 to 10 meters) and calls as he floats downward (Knopf and Wunder 2006, unpaginated, “Behavior” article).

Recent Nebraska studies addressed the mountain plover's nesting ecology, and attempted to identify the extent of breeding distribution and population size in Nebraska (Bly et al. 2008). Monitoring over the course of the study yielded a total of 278 nests, all but 6 on agricultural fields (Bly et al. 2008, p. 7). Most nests and the bulk of nest distribution were in Kimball County, in extreme southwestern Nebraska. The minimum breeding population was estimated to be 80 adults in 2007, based on nests found, with the range of the population estimate up to 360 birds (Bly et al. 2008, pp. 11-12).

Studies similar to those conducted in Nebraska were designed to determine the breeding distribution and population size in Oklahoma (McConnell et al. 2009). Mountain plovers were found in Cimarron and Texas Counties in the Oklahoma panhandle. Randomized point counts were used to derive a Statewide population estimate of 68 to 91 birds (McConnell et al. 2009, pp. 32-33). Mapped mountain plover locations were largely in bare agricultural fields (90 percent), with 5 percent associated with prairie dog towns (McConnell et al. 2009, pp. 31-32).

A review of breeding records for Canada concluded that the mountain plover is a peripheral species in Canada with no evidence that it was ever a common or regular breeder (Knapton et al. 2005, p. 32). The authors recommended additional searches in Alberta and Saskatchewan.

The first breeding record of mountain plover in Mexico was documented in Nuevo Leon (Gonzalez-Rojas 2006), following a history of breeding season observations in Mexican prairie dog ( C. mexicanus ) colonies.

Relatively few recent studies have addressed the mountain plover on its wintering range. A survey of mountain plover and their use of cultivated fields in the Imperial Valley of California in 2001 found 4,037 birds (Wunder and Knopf 2003, p. 75). Grazed alfalfa fields and burned Bermudagrass fields were heavily utilized by mountain plover. The importance of the Imperial Valley to mountain plover, where the authors suggested half of the continental population of mountain plovers may winter, is linked to losses of wintering habitat in coastal and Central Valley, California (Wunder and Knopf 2003, pp. 77-78). Mountain plovers wintering in the Imperial Valley were surveyed in 2003 and 2004, in an attempt to develop a statistically reliable estimate of numbers (Knopf and Wunder 2004). Flocking behavior, mobility, and weather were among factors limiting the reliability of Imperial Valley surveys as an indicator of population trends.

Hunting and Edson (2008, pp. 180-186) provided a species account of mountain plover in California, where it is considered a bird species of special concern. They surveyed existing information, provided management recommendations for grassland and cultivated habitats, and suggested research into mountain plover use, movements, and survival as related to habitat type (Hunting and Edson 2008, pp. 184-185). Information gained from their suggested research may be particularly important given the dynamic, market-driven nature of agricultural production and the dependence of agricultural activity, especially in California and the arid Southwest, on irrigation water imported from other areas. Moreover, the changes in the availability of irrigation water that might result from the effects of global climate change and changes in the characteristics of agricultural lands as a result of improved or more broadly implemented water conservation techniques, or changes in cultivation practices could further affect the availability and quality of wintering habitat for the species.

Wunder (2007) studied geographic population structure in mountain plover through color-banding and stable isotope concentrations in feathers. He concluded that there is widespread mixing of mountain plover populations in winter and that birds may use alternate wintering sites in different years (Wunder 2007, p. 118). There was evidence that recruitment may be linked to regional patterns of climate, with highest recruitment coming from breeding areas with low precipitation (Wunder 2007, pp. 119-121).

A genetic study using nuclear microsatellites concluded that mountain plover across sampled breeding locations in Colorado and Montana comprised a single, relatively homogenous gene pool (Oyler-McCance et al. 2008). Results suggested that there was sufficient gene flow among breeding areas to offset genetic effects of small populations and reported adult fidelity to breeding areas (Oyler-McCance et al. 2008, 496-497). From a genetic perspective this suggests that no single breeding population requires special conservation or protection.

The December 5, 2002, proposed rule (67 FR 72396) included a proposal to list the species as threatened and a proposed special rule under section 4(d) of the Act. That proposed special rule was designed to help facilitate recovery of the mountain plover in the event that a final listing rule was enacted. We are not reinstating the proposed special rule now, as explained below.

The special rule proposed to allow the incidental take of mountain plovers during routine farming practices on summer fallow, cropland idle, or cropland harvested between April 1 and June 30 in Colorado, Kansas, Nebraska, Oklahoma, and Laramie and Goshen Counties, Wyoming. In the 2002 proposed rule, we specified the expiration date of the proposed special rule as December 31, 2004 to allow adequate time for research to be conducted regarding conservation of the species on agricultural lands. By the expiration date, we intended to decide whether or not to permanently adopt the special rule. In the 2002 proposed rule, we suggested that the research results obtained might support continuation of a proposed special rule in the same or a modified form, or support the proposed expiration of the special rule. Since the publication of the 2002 proposed rule, several studies have been conducted; research results are reported in Drietz et al. (2005), Drietz and Knopf (2007), Drietz (2009), and Tipton et al. (2009). Additional research is ongoing.

The special rule also proposed to allow incidental take of mountain plovers for activities covered under a valid permit issued by the Fish and Wildlife Service for conducting research, educational purposes, scientific purposes, enhancement of or propagation for survival of the mountain plover, zoological exhibition, and other conservation purposes in accordance with 50 CFR 17.32 and under a cooperative agreement with the State under section 6 of the Act, if applicable. At this time, we believe that the regulations at 50 CFR 17.32 adequately address the circumstances described above and the conservation needs of the mountain plover, and that a special rule under section 4(d) of the Act to address these circumstances may not be necessary for this species.

Therefore, we are not reinstating that portion of the December 5, 2002, proposed rule (67 FR 72396) regarding the proposed special rule under section 4(d) of the Act for the mountain plover. However, we invite public comments on whether a special rule under section 4(d) of the Act would be necessary and advisable to provide for the conservation of this species.

For clarity, we are providing a Proposed Regulation Promulgation section in this document to specify the one regulatory change we are proposing: to list the mountain plover as threatened in the Federal List of Endangered and Threatened Wildlife at 50 CFR 17.11.

We intend that any final action resulting from this proposal will be based on the best scientific and commercial data available and will be as accurate and as effective as possible. To ensure our determination is based on the best available scientific and commercial information, we request information on the mountain plover from governmental agencies, Native American Tribes, the scientific community, industry, and any other interested parties. We request comments or suggestions on our proposal to list the mountain plover, on the new information contained in the sources we have made available, and on any other information. We particularly seek comments and information on:

(1) Life history, ecology, and habitat use of the mountain plover;

(2) Range, distribution, population size, and population trends;

(3) Positive and negative effects of current and foreseeable land management practices on the mountain plover, including conservation efforts; and

(4) Current and foreseeable threats to the mountain plover and its habitat in relation to the factors that are the basis for making a listing/delisting/downlisting determination for a species under section 4(a) of the Act, which are:

(a) The present or threatened destruction, modification, or curtailment of its habitat or range;

(b) Overutilization for commercial, recreational, scientific, or educational purposes;

(c) Disease or predation;

(d) The inadequacy of existing regulatory mechanisms; or

(e) Other natural or manmade factors affecting its continued existence.

We are especially interested in obtaining comments and information regarding:

• New information on life span, site fidelity, dispersal, and genetic diversity in the mountain plover;

• New estimates of total mountain plover numbers and their significance to the species' status;

• New information regarding mountain plover breeding in agricultural areas, and whether cultivated fields are beneficial or harmful to mountain plover persistence;

• Current and potential future impacts of oil and gas development, and wind energy development, on the mountain plover and its habitat;

• The significance of current and potential future changes in mountain plover wintering habitat, including those resulting from changes in water use in agriculture and conversion of agriculture to other land uses, especially in California; and

• The potential impacts of future climate change on the mountain plover and its habitat.

As noted earlier, we also invite comments on the merits of enacting a special rule under section 4(d) of the Act should we list the mountain plover as a threatened species under the Act. We specifically request comments on whether, following any final decision to list the mountain plover, a special rule would be necessary and advisable to provide for the conservation of the species and, if so, what form this rule should take and why.

You may submit your comments and information concerning the proposed rule by one of the methods listed in the ADDRESSES section. If you submit information via http://www.regulations.gov , your entire submission—including any personal identifying information—will be posted on the website. If you submit a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this personal identifying information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov .

Information and materials we receive, as well as supporting documentation we used in preparing this proposal and other listing determinations for the species, will be available for public inspection on http://www.regulations.gov , or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Colorado Ecological Services Office (see FOR FURTHER INFORMATION CONTACT ). If you submitted comments or information previously on the proposed rule or during any of the previous open comment periods related to this proposed rule, please do not resubmit them. These comments have been incorporated into the public record and will be fully considered in the preparation of our final determination.

The Service will finalize a new listing determination after we have completed our review of the best available scientific and commercial information, including information and comments submitted during this comment period.

The primary authors of this notice are staff members of the Colorado Ecological Services Office, U.S. Fish and Wildlife Service (see FOR FURTHER INFORMATION CONTACT ).

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

1. The authority citation for part 17 continues to read as follows:

We intend that any final action resulting from the proposed rule will be based on the best scientific data available and will be accurate and as effective as possible. Therefore, we request comments or information from other concerned government agencies, the scientific community, industry, or any other interested party during this reopened comment period on the proposed revised designation of critical habitat for the arroyo toad published in the Federal Register on October 13, 2009 (74 FR 52612), including the changes to and considerations regarding proposed revised critical habitat in Unit 15 and Subunits 6b, 11b, 16a, 16d and 19a; the draft economic analysis (DEA) of the proposed revised designation of critical habitat for the arroyo toad; and the amended required determinations provided in this document. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:

(1) The reasons why we should or should not revise the designation of habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531 et seq. ), including whether there are threats to the species from human activity, the degree of which can be expected to increase due to the designation, and whether that increase in threat outweighs the benefit of designation such that the designation of critical habitat is not prudent.

(2) Specific information on:

• The amount and distribution of arroyo toad habitat included in the proposed revised rule,

• What areas within the geographical area occupied by the species at the time of listing that contain physical and biological features essential to the conservation of the species we should include in the designation and why, and

• What areas outside the geographical area occupied by the species at the time of listing are essential for the conservation of the species and why.

(3) Land-use designations and current or planned activities in the subject areas and their possible effects on proposed revised critical habitat for the arroyo toad.

(4) Any foreseeable economic, national security, or other relevant impacts of designating any area that may be included in the final designation. We are particularly interested in any impacts on small entities, and the benefits of including or excluding areas that exhibit these impacts.

(5) The likelihood of adverse social reactions to the designation of critical habitat, as discussed in the DEA, and how the consequences of such reactions, if likely to occur, would relate to the conservation and regulatory benefits of the proposed critical habitat designation.

(6) Comments or information that may assist us in identifying or clarifying the primary constituent elements and the resulting physical and biological features essential to the conservation of the arroyo toad.

(7) How the proposed revised critical habitat boundaries could be refined to more closely circumscribe the landscapes identified as essential.

(8) Information regarding Trabuco Creek in Orange County, and any special management considerations or protection that any essential physical or biological features in this area may require.

(9) Information regarding the San Diego River in San Diego County, from just below El Capitan Reservoir downstream to the confluence with San Vicente Creek, and any special management considerations or protection that any essential physical or biological features in this area may require.

(10) Whether our exemption, under section 4(a)(3)(B) of the Act, of the lands on Department of Defense land at Marine Corps Base, Camp Pendleton, in San Diego County; Fallbrook Naval Weapons Station in San Diego County; and Fort Hunter Liggett Military Reservation in San Luis Obispo County is or is not appropriate, and why.

(11) Whether the potential exclusion under section 4(b)(2) of the Act of non-Federal lands covered by the Western Riverside County Multiple Species Habitat Conservation Plan from final revised critical habitat is or is not appropriate and why.

(12) Whether the potential exclusion under section 4(b)(2) of the Act of non-Federal lands covered by the San Diego Multiple Species Conservation Program-City and County of San Diego's Subarea Plans from final revised critical habitat is or is not appropriate and why.

(13) Whether the potential exclusion under section 4(b)(2) of the Act of non-Federal lands covered by the Coachella Valley Multiple Species Habitat Conservation Plan from final revised critical habitat is or is not appropriate and why.

(14) Whether the potential exclusion under section 4(b)(2) of the Act of non-Federal lands covered by the Orange County Central-Coastal Subregional Habitat Conservation Plan/Natural Community Conservation Plan from final revised critical habitat is or is not appropriate and why.

(15) Whether the potential exclusion under section 4(b)(2) of the Act of non-Federal lands covered by the Southern Orange County Natural Community Conservation Plan/Master Streambed Alteration Agreement/Habitat Conservation Plan (Southern Orange HCP) from final revised critical habitat is or is not appropriate and why. Please note that a portion of Subunit 10b was not discussed under our section on the Southern Orange HCP in the October 13, 2009, proposed revised critical habitat rule. This area is covered by the Southern Orange HCP and we are considering the area in Subunit 10b for exclusion (see “Habitat Conservation Plans—Exclusions Under Section 4(b)(2) of the Act” section in the proposed revised critical habitat designation (74 FR 52612)).

(16) Whether the conservation needs of the arroyo toad can be achieved or not by limiting the designation of final revised critical habitat to non-Tribal lands and why.

(17) Whether the potential exclusion, under section 4(b)(2) of the Act, of Tribal lands of the Rincon Band of Luiseño Mission Indians from final revised critical habitat is or is not appropriate and why.

(18) Whether the potential exclusion, under section 4(b)(2) of the Act, of Tribal lands of the Pala Band of Luiseño Mission Indians from final revised critical habitat is or is not appropriate and why.

(19) Whether the potential exclusion, under section 4(b)(2) of the Act, of Tribal lands of the Sycuan Band of the Kumeyaay Nation from final revised critical habitat is or is not appropriate and why.

(20) Whether the potential exclusion, under section 4(b)(2) of the Act, of Tribal lands of the Capitan Grande Band of Diegueno Mission Indians from final revised critical habitat is or is not appropriate and why.

(21) Whether the potential exclusion, under section 4(b)(2) of the Act, of Tribal lands of the Mesa Grande Band of Diegueno Mission Indians from final revised critical habitat is or is not appropriate and why.

(22) Whether the potential exclusion, under section 4(b)(2) of the Act, of Subunit 6b from final revised critical habitat is or is not appropriate and why.

(23) Whether the potential exclusion, under section 4(b)(2) of the Act, of Department of Defense lands at the Remote Training Site Warner Springs and Camp Morena from final revised critical habitat is or is not appropriate and why.

(24) Information on the potential effects of climate change on the arroyo toad and its habitat.

(25) Any foreseeable impacts on energy supplies, distribution, and use resulting from the proposed revised designation and, in particular, any impacts on electricity production, and the benefits of including or excluding any particular areas that exhibit these impacts.

(26) Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.

(27) Information on whether the DEA makes appropriate assumptions regarding current practices and any regulatory changes that likely may occur if we designate proposed revised critical habitat for the arroyo toad.

(28) Information on the accuracy of our methodology in the DEA for distinguishing baseline and incremental costs, and the assumptions underlying the methodology.

(29) Information on whether the DEA correctly assesses the effect on regional costs associated with any land use controls that may result from the proposed revised designation of critical habitat for the arroyo toad.

(30) Information on whether the proposed revised designation of critical habitat will result in disproportionate economic impacts to specific areas or small businesses, including small businesses in the land development sector in San Diego County.

(31) Information on whether the DEA identifies all costs that could result from the proposed revised designation of critical habitat for the arroyo toad.

(32) Economic data on the incremental costs of designating a particular area as revised critical habitat.

(33) Whether the benefit of exclusion of any other particular area not specifically identified above outweighs the benefit of inclusion under section 4(b)(2) of the Act.

If you submitted comments or information on the proposed revised rule (74 FR 52612) during the initial comment period from October 13, 2009, to December 14, 2009, please do not resubmit them. We will incorporate them into the public record as part of this comment period, and we will fully consider them in the preparation of our final determination. Our final determination concerning revised critical habitat will take into consideration all written comments and any additional information we receive during both comment periods. On the basis of public comments, we may, during the development of our final determination, find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion.

You may submit your comments and materials concerning our proposed rule, the revisions to and considerations regarding proposed critical habitat described in this document, the associated DEA, and our amended required determinations by one of the methods listed in the ADDRESSES section. We will not consider comments sent by e-mail or fax or to an address not listed in the ADDRESSES section.

If you submit a comment via http://www.regulations.gov , your entire comment, including any personal identifying information, will be posted on the Web site. If you submit a hard copy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hard copy comments on http://www.regulations.gov .

Comments and materials we receive (and have received), as well as supporting documentation we used in preparing this notice, will be available for public inspection on http://www.regulations.gov [Docket Number FWS-R8-ES-2009-0069], or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

You may obtain copies of the proposed rule and DEA by mail from the Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ), by visiting the Federal eRulemaking Portal at http://www.regulations.gov , or on our Web site at http://www.fws.gov/ventura .

It is our intent to discuss only those topics directly relevant to the proposed revised designation of critical habitat for arroyo toad in this document. For more information on previous Federal actions concerning the arroyo toad, refer to the proposed revised designation of critical habitat published in the Federal Register on October 13, 2009 (74 FR 52612). Additional information on the arroyo toad may also be found in the final listing rule published in the Federal Register on December 16, 1994 (59 FR 64859), the “Recovery Plan for the Arroyo Southwestern Toad” (recovery plan; Service 1999) (the nomenclature for the listed entity has changed to “arroyo toad ( Anaxyrus californicus ),” but this change does not alter the description or distribution of the animals), and the designation of critical habitat for the arroyo toad published in the Federal Register on April 13, 2005 (70 FR 19562). These documents are available on the Ventura Fish and Wildlife Office and Carlsbad Fish and Wildlife Office websites at http://www.fws.gov/ventura and http://www.fws.gov/carlsbad . However, please note that the October 13, 2009 (74 FR 52612) proposed rule incorporates new information on the distribution of arroyo toads that became available since the 2005 final critical habitat designation for this species.

On July 20, 2007 (Service 2007, pp. 1-2), we announced that we would review the April 13, 2005, final rule after questions were raised about the integrity of scientific information used and whether the decision made was consistent with the appropriate legal standards. Based on our review of the previous final critical habitat designation, we determined it was necessary to revise critical habitat; thus, our October 13, 2009, proposed rule (74 FR 52612) and this document collectively propose those revisions. On December 19, 2007, the Center for Biological Diversity filed a complaint in the U.S. District Court for the Southern District of California challenging our designation of critical habitat for the arroyo toad ( Center for Biological Diversity v. U.S. Fish and Wildlife Service , Case No. 07-2380-JM-AJB). On June 5, 2008, the court entered a consent decree requiring a proposed revised critical habitat rule to be submitted to the Federal Register by October 1, 2009, and a final revised critical habitat designation to be submitted to the Federal Register by October 1, 2010.

Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting areas designated as critical habitat must consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.

Under section 4(b)(2) of the Act, we may exclude an area from critical habitat if we determine that the benefits of such exclusion outweigh the benefits of including that particular area as critical habitat, unless failure to designate that specific area as critical habitat will result in the extinction of the species. We may exclude an area from designated critical habitat based on economic impacts, national security, or any other relevant impact, including but not limited to the value and contribution of continued, expanded, or newly forged conservation partnerships.

When considering the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive from the protection from adverse modification or destruction as a result of actions with a Federal nexus; the educational benefits of mapping areas containing essential features that aid in the recovery of the listed species; and any benefits that may result from designation due to State or Federal laws that may apply to critical habitat.

When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; the continuation, strengthening, or encouragement of partnerships; or implementation of a management plan. In the case of the arroyo toad, the benefits of critical habitat include public awareness of arroyo toad presence and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for arroyo toad due to protection from adverse modification or destruction of critical habitat. In practice, situations with a Federal nexus exist primarily on Federal lands or for projects undertaken by Federal agencies.

When we evaluate the benefits of excluding an area being managed under an existing conservation plan, we consider a variety of factors, including but not limited to whether the plan is finalized; how it provides for the conservation of the essential physical and biological features; whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan will be implemented into the future; whether the conservation strategies in the plan are likely to be effective; and whether the plan contains a monitoring program or adaptive management to ensure that the conservation measures are effective and can be adapted in the future in response to new information.

After evaluating the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to determine whether the benefits of exclusion outweigh those of inclusion. If we determine that they do, we then determine whether the exclusion of the specific area would result in extinction of the species. If exclusion of an area from critical habitat will result in extinction, we cannot exclude it from the designation.

Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. We prepared a DEA of our October 13, 2009 (74 FR 52612), proposed revised designation of critical habitat for the arroyo toad.

The intent of the DEA is to identify and analyze the potential economic impacts associated with the proposed revised designation of critical habitat for the arroyo toad. Additionally, the economic analysis looks retrospectively at costs incurred since the December 16, 1994 (59 FR 64859), listing of the arroyo toad as an endangered species. The DEA quantifies the economic impacts of all potential conservation efforts for the arroyo toad; some of these costs will likely be incurred regardless of whether we designate revised critical habitat. The economic impact of the proposed revised designation of critical habitat for the arroyo toad is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, considering protections already in place for the species (for example, under the Federal listing and other Federal, State, and local regulations). The baseline, therefore, represents the costs incurred regardless of whether critical habitat is designated and may include costs incurred in the future. The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts are those not expected to occur absent the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat above and beyond the baseline costs; these are the costs we may consider in the final designation of critical habitat. The analysis looks retrospectively at baseline impacts incurred since we listed the species, and forecasts both baseline and incremental impacts likely to occur if we finalize the proposed revised designation of critical habitat for the arroyo toad. For a further description of the methodology of the analysis, see Chapter 1, “Approach to Estimating Economic Effects,” of the DEA.

The current DEA estimates the foreseeable economic impacts of the proposed revised designation of critical habitat for the arroyo toad by identifying the potential resulting incremental costs. The DEA describes economic impacts of arroyo toad conservation efforts associated with the following categories: (1) Real estate development; (2) changes in water supply; (3) grazing activities; (4) mining activities; (5) road construction projects; (6) utility and other infrastructure projects; (7) application of the California Environmental Quality Act (CEQA); and (8) uncertainty and delay.

Baseline economic impacts are those impacts that result from listing and other conservation efforts for arroyo toad not attributable to designation of critical habitat and thus are expected to occur regardless of whether we designate critical habitat. Total future baseline impacts over the next 25 years (2010 to 2035) are estimated to be $385 million (approximately $33 million annualized) in present value terms using a 7 percent discount rate. Overall, the real estate industry (real estate development, CEQA, and delay impacts) is estimated to experience the highest cost, followed by water consumers and road construction projects. Of the 22 proposed critical habitat units, 3 are expected to incur more than $50 million each in total baseline economic costs between 2010 and 2035. Critical habitat Unit 16 (Santa Ysabel Creek Basin) in San Diego County has the largest total baseline impacts ($74 million) of the units considered for designation.

The DEA estimates total potential incremental economic impacts in areas proposed as revised critical habitat over the next 25 years (2010 to 2035) to be $789 million ($68 million annualized) in present value terms using a 7 percent discount rate. Overall, the real estate industry (real estate development, CEQA, and delay impacts) is estimated to experience the highest cost, followed by utilities and infrastructure projects. Of the 22 proposed critical habitat units, 4 are expected to incur incremental economic costs greater than $50 million each between 2010 and 2035. Critical habitat Unit 16 (Santa Ysabel Creek Basin) in San Diego County has the largest incremental impacts ($211 million) of the units considered for designation.

We are also including an additional 3,655 ac (1,479 ha) in the proposed revised critical habitat designation compared to the October 13, 2009, proposed revised critical habitat designation, bringing the total to 112,765 ac (45,634 ha) of proposed revised critical habitat for the arroyo toad. The additional area has not been assessed in this DEA; however, an initial evaluation reveals that approximately 70 percent of the additional area would be evaluated under the baseline scenario because it contains an overlapping 100-year flood plain or existing habitat conservation plan (HCP) boundary and is primarily publicly owned or otherwise undevelopable. The remaining 30 percent of the additional area is privately owned and does not contain an overlapping 100-year flood plain or existing HCP boundary, and survey data indicate this area is not within the 1500-meter (m) (4,921-foot (ft)) buffer surrounding known arroyo toad sites. The habitat areas most likely to involve a Federal nexus and section 7 consultation are within riparian areas, and we are using the 100-year flood plain and1500-m (4,921-ft) buffer surrounding known arroyo toad sites to identify those riparian areas. Therefore the inclusion of this area in the proposed revised critical habitat is not anticipated to substantially increase the incremental impacts or alter the ranking of critical habitat units (in terms of total economic impacts per unit). The final economic analysis will reflect the baseline and incremental economic impacts of the additional 3,655 ac (1,479 ha).

The DEA considered both economic efficiency and distributional effects. In the case of habitat conservation, efficiency effects generally reflect the “opportunity costs” associated with the commitment of resources to comply with habitat protection measures (e.g., lost economic opportunities associated with restrictions on land use). The DEA also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on government agencies, private businesses, and individuals. The DEA measures lost economic efficiency associated with real estate development, changes in water supply, grazing and mining activities, road construction projects, utility and other infrastructure projects, CEQA, uncertainty, and delay, and the effects of this lost economic efficiency on Federal lands, small entities, and the energy industry. We can use this information to assess whether the effects of the revised designation might unduly burden a particular group or economic sector.

As we stated earlier, we are soliciting data and comments from the public on the DEA, as well as on all aspects of the proposed revised designation of critical habitat, our revisions to proposed critical habitat described in this document, and our amended required determinations. We may revise the proposed rule and/or the economic analysis to incorporate or address information we receive during this public comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided the exclusion will not result in the extinction of the species.

In this document, we are proposing further revisions to the proposed revised critical habitat in Unit 15 and Subunits 11b, 16a, and 16d, as identified and described in the proposed rule that we published in the Federal Register on October 13, 2009 (74 FR 52612). We received new information in the form of survey reports, survey data, and public comments indicating that we should re-evaluate the proposed boundaries of these areas. The purpose of the revisions described below is to better delineate the areas that meet the definition of critical habitat for the arroyo toad and to ensure that all areas proposed are consistent with the criteria outlined in the proposed revised rule (see “Criteria Used To Identify Critical Habitat” section in the proposed revised critical habitat designation (74 FR 52620 - 52622)). All areas added to the proposed units are within the geographical area occupied by the species at the time it was listed and contain the physical and biological features essential to the conservation of the species. Revised maps are included in the Proposed Regulation Promulgation section of this document. Below, we briefly describe the changes made for each of these units. As a result of these revisions, the overall area proposed for designation as critical habitat is 112,765 ac (45,634 ha), an increase of 3,655 ac (1,479 ha) from 109,110 ac (44,155 ha) in the October 13, 2009, proposal (74 FR 52612).

We are considering for exclusion all or part of Subunit 6b, and portions of Unit 15 and Subunit 19a from critical habitat under section 4(b)(2) of the Act (see Additional Areas Currently Considered For Exclusion Under Section 4(b)(2) of the Act below).

We received a comment from the U.S. Forest Service indicating that areas upstream of Subunit 11b along San Mateo Creek contain habitat suitable for arroyo toad. We reevaluated survey data in our files from 1999 and 2004 along San Mateo Creek and within Los Alamos Canyon (Ervin 2000, in litt .; ECORP 2004). We added an area to the upstream end of Subunit 11b because it contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and nonbreeding activities and upland habitat for foraging and dispersal activities. These additional areas may require the same special management considerations or protection discussed for this Unit in the October 2009 proposed rule. Additionally, adding occupied areas on stream reaches containing suitable breeding and upland habitat is consistent with our criteria used to identify critical habitat, as outlined in the proposed rule (74 FR 52612). The northeastern expansion of the critical habitat designation boundary for Subunit 11b encompasses (1) approximately 8.3 mi (13 km) upstream along San Mateo Creek to Los Alamos Canyon, and (2) approximately 2.4 mi (4 km) of Los Alamos Canyon upstream from the confluence with San Mateo Creek. The revised subunit consists of 844 ac (341 ha) of U.S. Forest Service land, an increase of 810 ac (327 ha) from 34 ac (14 ha) proposed in the October 13, 2009, proposed rule (74 FR 52612). Unit 11 now totals 1,878 ac (758 ha)—an increase from 1,068 ac (432 ha) in the October 13, 2009, proposed rule (74 FR 52612).

We received new information in the form of a survey report indicating that areas upstream of Unit 15 along Cañada Aguanga contain habitat occupied by arroyo toad (Tierra Data Inc. 2007, pp. 112-113, 118-119, and 121). We added an area to the upstream end of this unit because it contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and nonbreeding activities and upland habitat for foraging and dispersal activities. These additional areas may require the same special management considerations or protection discussed for this Unit in the October 2009 proposed rule. Adding occupied areas on stream reaches containing suitable breeding and upland habitat is consistent with our criteria used to identify critical habitat, as outlined in the proposed revised rule (74 FR 52612). The northern expansion of the critical habitat designation boundary for Unit 15 encompasses approximately 3.5 mi (6 km) along Cañada Aguanga and extends to just below Lake Jean. The revised unit consists of 1,467 ac (594 ha) of U.S. Forest Service land and 11,511 ac (4,658 ha) of private land—an increase of 951 ac (385 ha) from what we proposed in the October 13, 2009, proposed rule (74 FR 52612). Unit 15 now totals 12,977 ac (5,252 ha).

We received information from two sources that resulted in our re-evaluation of Subunit 16a. First, we received survey data indicating that areas upstream of Subunit 16a along Santa Ysabel Creek contain habitat occupied by arroyo toad (Ramirez in litt . 2009). We added an area to the upstream end of this subunit because it contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and nonbreeding activities and upland habitat for foraging and dispersal activities. These additional areas may require the same special management considerations or protection discussed for this Unit in the October 2009 proposed rule. Adding occupied areas on stream reaches containing suitable breeding and upland habitat is consistent with our criteria used to identify critical habitat, as outlined in the proposed revised rule (74 FR 52612). This northeastern expansion of the critical habitat designation boundary for Subunit 16a encompasses approximately 1.3 mi (2.1 km) along Santa Ysabel Creek upstream from the confluence with Temescal Creek. Second, we received survey data indicating that areas downstream of Subunit 16a along Santa Ysabel Creek and portions of the San Dieguito River contain habitat occupied by arroyo toad (Haas in litt . 2009; U.S. Geological Survey (USGS) 2009, unpublished data). We added an area to the downstream end of this subunit because it contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and nonbreeding activities and upland habitat for foraging and dispersal activities. Adding occupied areas on stream reaches containing suitable breeding and upland habitat is consistent with our criteria used to identify critical habitat, as outlined in the proposed revised rule (74 FR 52612). The southwestern expansion of the critical habitat designation boundary for Subunit 16a encompasses: (1) Approximately 3.7 mi (6 km) downstream along Santa Ysabel Creek to the confluence with the San Dieguito River; and (2) approximately 1 mi (2 km) of the San Dieguito River upstream from the confluence with Santa Ysabel Creek. The revised subunit consists of 184 ac (74 ha) of U.S. Forest Service land, 6 ac (2 ha) of Bureau of Land Management land, 182 ac (74 ha) of State land, 143 ac (58 ha) of local government land, and 13,452 ac (5,444 ha) of private land—an increase of 1,831 ac (741 ha) from 12,136 ac (4,911 ha) proposed in the October 13, 2009, proposed rule (74 FR 52612). Subunit 16a now totals 13,967 ac (5,652 ha).

We also received survey data indicating that areas downstream of Subunit 16d along Santa Ysabel Creek contain habitat occupied by arroyo toad (Haas 2009, in litt .; USGS 2009, unpublished data). We added an area to the downstream end of this subunit because it contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and nonbreeding activities and upland habitat for foraging and dispersal activities. These additional areas may require the same special management considerations or protection discussed for this Unit in the October 2009 proposed rule. Adding occupied areas on stream reaches containing suitable breeding and upland habitat is consistent with our criteria used to identify critical habitat, as outlined in the proposed revised rule (74 FR 52612). The western expansion of the critical habitat designation boundary for Subunit 16d encompasses approximately 1.1 mi (2 km) downstream along Santa Ysabel Creek to Sutherland Reservoir. The revised subunit consists of 1,504 ac (609 ha) of private land and 23 ac (9 ha) of Tribal land—an increase of 96 ac (39 ha) from 1,431 ac (579 ha) proposed in the October 13, 2009, proposed rule (74 FR 52612). Subunit 16d now totals 1,527 ac (618 ha).

In summary, Unit 16 now totals 15,494 ac (6,270 ha)—an increase of 1,927 ac (780 ha) from 13,567 ac (5,490 ha) in the October 13, 2009, proposed rule (74 FR 52612).

Section 4(b)(2) of the Act states that the Secretary must designate and revise critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the legislative history is clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.

Under section 4(b)(2) of the Act, we consider all relevant impacts, including economic impacts. During the development of the final revised designation, we will consider economic impacts, public comments, and other new information, and areas (including those identified for potential exclusion in the October 13, 2009, proposed rule and new areas identified in this document) may be excluded from the final critical habitat designation under section 4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19.

We consider a number of factors, in addition to economic impacts, in a section 4(b)(2) analysis. For example, we consider whether there are lands owned by the Department of Defense where a national security impact might exist. We also consider whether landowners have developed any habitat conservation plans (HCPs) or other management plans for the area, or whether there are conservation partnerships that would be encouraged or discouraged by designation of, or exclusion from, critical habitat in an area. Additionally, we look at the presence of Tribal lands or Tribal trust resources that might be affected, and consider the government-to-government relationship of the United States with the Tribal entities. We also consider any significant social impacts that might occur because of the designation.

In our October 13, 2009, proposed revised critical habitat designation (74 FR 52612), we identified lands in Subunit 6b, Unit 15, and Subunit 19a as meeting the definition of critical habitat for the arroyo toad. Based on comments submitted during the initial public comment period from October 13, 2009, to December 14, 2009, we are considering the following areas for exclusion from critical habitat under section 4(b)(2) of the Act: All of Subunit 6b, the portion of Unit 15 within Remote Training Site Warner Springs, and the portion of Subunit 19a within Camp Morena.

In the October 13, 2009, proposed revised critical habitat designation (74 FR 52612), we erroneously reported that Subunit 6b consists of 159 ac (65 ha) of Federal land and 1,995 ac (807 ha) of private land. In actuality, Subunit 6b consists entirely of private land owned by the Newhall Land and Farming Company (Newhall LFC). Newhall LFC developed the Natural River Management Plan (“NRMP”) (Valencia Company 1998) for the long-term conservation and management of the biological resources within their lands, including the arroyo toad and its habitat; the NRMP was approved by the U.S. Army Corps of Engineers and California Department of Fish and Game (CDFG) in 1998. The NRMP provides management measures designed to protect, restore, monitor, manage, and enhance habitat for multiple species, including the arroyo toad, that occur along the Santa Clara River (River), Castaic Creek, and San Francisquito Creek within Subunit 6b. Of particular importance to the conservation of the arroyo toad and its habitat within Subunit 6b was the inclusion in the NRMP of substantial conservation easements, which when fully implemented, will protect almost all of the arroyo toad's breeding habitat and riparian river corridor within Subunit 6b. At the present time, approximately 1,011 ac (409 ha) of conservation easements on Newhall LFC lands near the City of Santa Clarita in Los Angeles County within Subunit 6b have been conveyed to the CDFG and additional easements totaling approximately 28 ac (11 ha) are awaiting approval by CDFG. The conservation easements that have been conveyed to the California Department of Fish and Game over the Santa Clara River corridor, San Francisquito Creek, and Castaic Creek will ensure that habitat within the easements will remain in a natural condition in perpetuity. Use of the property covered by the easements is confined to the preservation and enhancement of native species and their habitats, including the arroyo toad and its habitat. These conservation easements provide greater protection of crucial arroyo toad breeding and foraging habitat in this area than could be gained through the designation of critical habitat. Additionally, we have already completed section 7 consultation on the effects of the NRMP on the arroyo toad and found that it would not jeopardize the continued existence of the species.

Newhall LFC has committed to implement other protective measures for arroyo toad habitat in the NRMP, including: (1) The creation of new riverbed areas, including planting wetland mitigation sites; (2) revegetation of riparian areas; (3) removal of invasive plants such as arundo ( Arundo donax ) and tamarisk ( Tamarix sp.); (4) protecting wetlands from urban runoff by establishing a revegetated upland buffer between developed areas and the River; (5) implementing a Drainage Quality Management Plan with Best Management Practices to ensure water quality within the River corridor; and (6) implementing the biological mitigation measures for the Newhall Ranch Specific Plan that include restricting pets and off-road vehicles from the area and restricting access to the River corridor by limiting hiking and biking to the River trail system.

Based on the many conservation measures included in the NRMP that protect the arroyo toad and its habitat on Newhall Ranch lands in Subunit 6b, the conservation easement lands that have already been conveyed to CDFG and are planned in the future in this subunit, and because of the valuable conservation partnership we have developed over the years with Newhall Ranch, we are considering the entire Subunit 6b for exclusion under section 4(b)(2) of the Act.

In our October 13, 2009, proposed revised critical habitat designation (74 FR 52612), we identified lands in Unit 15 and Subunit 19a as meeting the definition of critical habitat for the arroyo toad. Based on comments submitted by the U.S. Navy during the initial public comment period from October 13, 2009, to December 14, 2009, we are considering for exclusion the portion of Unit 15 within Remote Training Site Warner Springs and the portion of Subunit 19a within Camp Morena from critical habitat under section 4(b)(2) of the Act.

The U.S. Navy conducts training activities within the Remote Training Site Warner Springs complex, which is comprised of 6,158 ac (2,486 ha) of lands owned by, and leased from, the Vista Irrigation District and the Cleveland National Forest. Additionally, the U.S. Navy is proposing to expand its training activities onto another 6,326 ac (2,554 ha) of lands owned by the Bureau of Land Management, Cleveland National Forest, and the Vista Irrigation District, expanding the total training area to approximately 12,484 ac (5,040 ha).

The Remote Training Site Warner Springs serves as the principal venue for SERE (Survival, Evasion, Resistance, and Escape) training on the west coast. It also supports training activities for Naval Special Warfare, 1 st Marine Special Operations Battalion, Naval Construction Force Amphibious Construction Battalion One Seabees, 1 st Marine Expeditionary Force Training and Experimentation Group/Tactical Exercise Group, and other nonroutine training.

The U.S. Navy is currently revising the 2002 Naval Base Coronado Integrated Natural Resources Management Plan (INRMP), which we received a draft of in September 2009, to address management of the arroyo toad and its habitat at the Remote Training Site Warner Springs. Additionally, the U.S. Navy is currently implementing measures to avoid or minimize impacts to the arroyo toad, as identified in a biological opinion we issued on October 30, 2009, on the proposed expansion and realignment of training areas at Remote Training Site Warner Springs (Service 2009). These measures include, but are not limited to: (1) Avoid and minimize impacts to the on-site population of the arroyo toad within an “Arroyo Toad Management Area”; (2) permanently close two stream crossings on the San Luis Rey River; (3) educate personnel on how to avoid adverse impacts to the species; (4) prioritize nonnative, invasive plant species searches and spot treatment control efforts in riparian zones and areas of higher levels of training activity; and (5) conduct surveys for arroyo toads at least every 3 years to determine status and location.

We received a public comment from the U.S. Navy expressing concern that designation of these lands would cause mission-critical activities to be delayed if they were required to conduct consultation due to a critical habitat designation. Mission-critical activities not previously analyzed that would likely be delayed by section 7 consultation and that directly affect national security include training activities and supporting facility construction. Delays in construction and training schedules could disrupt the ability to acquire and perform unique, tactical, special warfare skills required for personnel readiness. We will consider several factors, including impacts to national security associated with a critical habitat designation as described by the U.S. Navy, existing consultations, and conservation measures in place at this facility that benefit the arroyo toad. Of the 12,977 ac (5,252 ha) in Unit 15 proposed as critical habitat, 4,609 ac (1,865 ha) are part of the existing and proposed Remote Training Site Warner Springs that we are considering for exclusion under section 4(b)(2) of the Act.

Camp Morena is a small parcel of approximately 71 ac (29 ha) used by the U.S. Navy under a year-to-year license with the City of San Diego that serves as a support facility for the nearby Camp Michael Monsoor (formerly called La Posta Mountain Warfare Training Facility). In support of Camp Michael Monsoor, the U.S. Navy requires significant base operations and logistical support at Camp Morena, including administration activities, classrooms, conference rooms, mission planning capabilities, and berthing space. Future planned use of Camp Morena includes increased training functions with more frequent training and possible construction of new facilities.

The U.S. Navy is currently revising the 2002 Naval Base Coronado INRMP, which will address management of the arroyo toad and its habitat at Camp Morena.

We received a public comment from the U.S. Navy expressing concern that designation of these lands would cause mission-critical activities to be delayed if they were required to conduct consultation due to a critical habitat designation. The U.S. Navy asserted that delays in construction and training schedules could disrupt the ability to acquire and perform unique, tactical, special warfare skills required for personnel readiness. We will consider several factors, including impacts to national security associated with a critical habitat designation as described by the U.S. Navy, existing consultations, and conservation measures in place at this facility that benefit the arroyo toad. Of the 5,847 ac (2,366 ha) in Subunit 19a proposed as critical habitat, 31 ac (13 ha) are part of Camp Morena that are we considering for exclusion under section 4(b)(2) of the Act.

The following table presents all of the areas we are considering for exclusion under section 4(b)(2) of the Act from the revised critical habitat designation:

In our proposed rule dated October 13, 2009 (74 FR 52612), we indicated that we would defer our determination of compliance with several statues and Executive Orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders became available in the DEA. We have now made use of the DEA to make these determinations. In this document, we affirm the information in our proposed rule concerning Executive Order (E.O.) 12866 ( Regulatory Planning and Review ), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the National Environmental Policy Act (42 U.S.C. 4321 et seq. ), and the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951). However, based on the DEA data, we are amending our required determinations concerning the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), E.O. 13211 (Energy, Supply, Distribution, and Use), E.O. 12630 (Takings), and the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ).

Under the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Based on our DEA of the proposed revised designation, we provide our analysis for determining whether the proposed rule would result in a significant economic impact on a substantial number of small entities. Based on comments we receive, we may revise this determination as part of a final rulemaking.

According to the Small Business Administration, small entities include small organizations, such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term significant economic impact is meant to apply to a typical small business firm's business operations.

To determine if the proposed revised designation of critical habitat for arroyo toad would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities, such as residential and commercial development. In order to determine whether it is appropriate for our agency to certify that this rule would not have a significant economic impact on a substantial number of small entities, we considered each industry or category individually. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement. Critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. Some kinds of activities are unlikely to have any Federal involvement and so will not be affected by critical habitat designation. In areas where the species is present, Federal agencies already are required to consult with us under section 7 of the Act on activities they fund, permit, or implement that may affect the arroyo toad. Federal agencies also must consult with us if their activities may affect critical habitat.

In the DEA of the proposed revised designation of critical habitat, we evaluated the potential economic effects resulting from implementation of conservation actions related to the proposed revised designation of critical habitat. The DEA identified the estimated incremental impacts associated with the proposed revised designation of critical habitat as described in sections 2 through 6, and evaluated the potential for economic impacts related to activity categories including real estate development, changes in water supply, grazing and mining activities, road construction projects, utility and other infrastructure projects, CEQA, uncertainty, and delay. The DEA concluded that the incremental impacts resulting from this rulemaking that may be borne by small businesses will be associated with land development, cattle ranching, and farming. Incremental impacts are either not expected for the other types of activities considered, or, if expected, will not be borne by small entities.

As discussed in Appendix A of the DEA, the potential impacts of the proposed revised designation of critical habitat on land developers over the next 25 years would result from lost land value, project modification costs, CEQA costs, delay costs, and administrative costs. Small land developers with projects in the proposed revised critical habitat designation are expected to bear an annual incremental impact per project of between roughly $800 and $857,000. The number of small business in the land development industry affected annually ranges from zero to approximately 1.0 percent per county. Of those small land developers that are affected, the average annualized cost per project ranges from less than 0.1 percent to 40.5 percent of the typical annual sales. However, the annualized cost per project for affected small land developers in each county other than San Diego County is less than 1.6 percent of the typical annual sales (see Table A-1 in the DEA).

As discussed in Appendix A of the DEA, the potential impacts of the proposed revised designation of critical habitat on cattle ranchers and farmers would result from future project modifications, such as fencing, water source development, and availability of water for irrigation and groundwater recharge. Small cattle ranching businesses and farms operating in the proposed revised critical habitat designation are expected to bear an incremental impact per project of between roughly $6,000 and $13,700. The number of small cattle ranching operations and farms affected annually ranges from about 0.2 percent to approximately 2.0 percent of the cattle ranching businesses and farms in each county. For those small cattle ranching businesses and farms that are impacted, the average cost per project (i.e., grazing allotment) ranges from less than 1.0 percent to approximately 2.0 percent of the typical annual sales for a small business in the sector.

In summary, we have considered whether the proposed revised designation of critical habitat would result in a significant economic impact on a substantial number of small entities. We have identified small businesses that may be affected within the ranching and farming sectors. However, we have determined that the proposed revised designation of critical habitat for the arroyo toad would not have a significant economic impact on a substantial number of small business entities in the ranching and farming sectors. While we recognize that the impacts to small businesses in the land development sector in San Diego County may be significant, we believe that the overall number of small businesses affected by the designation is not substantial.

For the above reasons and based on currently available information, we certify that, if promulgated, the proposed revised designation of critical habitat for the arroyo toad would not have a significant economic impact on a substantial number of small business entities. Therefore, a regulatory flexibility analysis is not required. However, we do seek specific comment on the effects to small businesses in the land development sector, in particular those in San Diego County.

On May 18, 2001, the President issued E.O. 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires an agency to prepare a Statement of Energy Effects when undertaking certain actions. OMB's guidance for implementing this Executive Order outlines nine outcomes that may constitute “a significant adverse effect” when compared to no regulatory action. As discussed in Appendix A of the DEA, two criteria are relevant to this analysis: (1) Reductions in electricity production in excess of 1 billion kilowatt-hours per year or in excess of 500 megawatts of installed capacity, and (2) increases in the cost of energy production in excess of 1 percent. The DEA finds that this proposed revised critical habitat designation is expected to have minimal impacts on the energy industry.

In accordance with E.O. 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of proposing revised critical habitat for the arroyo toad in a takings implications assessment. Critical habitat designation does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. In conclusion, the proposed revision to critical habitat for the arroyo toad does not pose significant takings implications.

In accordance with the Unfunded Mandates Reform Act, the Service makes the following findings:

(a) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local or Tribal governments,” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to state, local and Tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or Tribal governments “lack authority” to adjust accordingly. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) as a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.”

Critical habitat designation does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. Designation of critical habitat may indirectly impact non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action that may be indirectly impacted by the designation of critical habitat. However, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments.

(b) As discussed in the DEA of the proposed designation of critical habitat for arroyo toad, we do not believe that this rule would significantly or uniquely affect small governments because it would not produce a Federal mandate of $100 million or greater in any year; that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The DEA concludes that incremental impacts may occur due to project modifications and administrative actions that may need to be made for activities, including: Real estate development (comprising land value loss, other project modifications, CEQA compliance, and delay); grazing; mining; utilities and infrastructure; and administrative costs associated with future formal and informal consultations on real estate development, water, roads, grazing, mining, infrastructure, and other projects. However, these activities are not expected to affect small governments. Consequently, we do not believe that the revised critical habitat designation would significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required.

A complete list of all references we cited in the proposed rule and in this document is available on the internet at http://www.regulations.gov or from the Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT section).

The primary authors of this rulemaking are the staff members of the Ventura Fish and Wildlife Office and the Carlsbad Fish and Wildlife Office.

Accordingly, we propose to further amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as proposed to be amended at 74 FR 52612, October 13, 2009, as follows:

1. The authority citation for part 17 continues to read as follows:

2. Critical habitat for the arroyo toad in § 17.95(d), which was proposed to be revised on October 13, 2009, at 74 FR 52612, is proposed to be further amended by revising:

a. Paragraph (d)(11)(ii), and the map for Units 8,10, and 11; and

b. Paragraph (d)(13)(ii), and the map for Units 12, 13, 14, 15, 16, and 17, as set forth below.

(d) Amphibians.

Arroyo Toad ( Anaxyrus californicus )

(11) * * *

(ii) Note : Map of Critical Habitat for Arroyo Toad ( Anaxyrus californicus ), Units 8, 10, and 11, Orange, Riverside, and San Diego Counties, California, follows:

(13) * * *

(ii) Note : Map of Critical Habitat for Arroyo Toad ( Anaxyrus californicus ), Units 12, 13, 14, 15, 16, and 17, Riverside and San Diego Counties, California, follows:

The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires that the North Pacific Fishery Management Council (Council) submit any FMP amendment it prepares to the Secretary of Commerce (Secretary) for review and approval, disapproval, or partial approval. The Magnuson-Stevens Act also requires that the Secretary, upon receiving an FMP amendment, immediately publish a notice in the Federal Register that the FMP amendment is available for public review and comment. The responsibilities of the Secretary under the Magnuson-Stevens Act have been delegated to NMFS.

If approved, Amendment 94 would require modified nonpelagic trawl gear for directed fishing for flatfish in the Bering Sea subarea and would change the boundaries of the Northern Bering Sea Research Area (NBSRA) to establish the Modified Gear Trawl Zone (MGTZ) and to expand the Saint Matthew Island Habitat Conservation Area (SMIHCA). The amendment also would make several minor technical changes to the FMP.

In October 2009, the Council unanimously recommended Amendment 94. The consideration of modified nonpelagic trawl gear was initiated with the Council's development of Amendment 89 to the FMP (73 FR 43362, July 25, 2008). Amendment 89 established the Bering Sea Habitat Conservation Measures, closing portions of the Bering Sea subarea to nonpelagic trawling, and established the NBSRA and SMIHCA. The Council adopted Amendment 89 in June 2007, but pursued the development of modified nonpelagic trawl gear through subsequent coordination with NMFS and the nonpelagic trawl fishing industry. Based on research by the Alaska Fisheries Science Center (AFSC), nonpelagic trawl gear can be modified to raise the sweeps off the bottom to reduce potential adverse effects on benthic habitat and maintain effective catch rates for flatfish target species. The gear would be modified by adding elevating devices to the trawl sweeps, which contribute up to 90 percent of the trawl gear contact with the bottom. AFSC studies have shown the use of modified nonpelagic trawl gear reduces mortality and disturbance of sea whips, basket stars, sponges, and crab species. The modified nonpelagic trawl gear did not significantly reduce catch rates of flatfish species. In 2008 and 2009, the AFSC and NOAA Office of Law Enforcement worked with the fishing industry to test the modified nonpelagic trawl gear under normal fishing conditions and determined that this gear can be safely and effectively used.

Amendment 94 would reduce the NBSRA to establish the MGTZ and to increase the SMIHCA (Figure 1). The NBSRA and the SMIHCA are currently closed to fishing with nonpelagic trawl gear. The NBSRA was established to provide a location with very little to no nonpelagic trawling for the purpose of studying the effects of nonpelagic trawling on bottom habitat. The SMIHCA was established to provide protection to blue king crab habitat from the impacts from nonpelagic trawl gear. Figure 1 shows the current southern boundary of the NBSRA and how this boundary would change with the proposed revision to the SMIHCA eastern border and with establishing the MGTZ.

The Council recommended moving the eastern boundary of the SMIHCA to the eastern edge of the 12-nautical mile (nm) Territorial Sea surrounding Saint Matthew Island. NMFS trawl annual surveys in 2007 through 2009 have found blue king crab in the area east of the SMIHCA out to the edge of the 12 nm Territorial Sea. Based on this information, the Council's Crab Plan Team recommended moving the eastern boundary of the SMIHCA to the eastern extent of the 12 nm Territorial Sea. Expanding the SMIHCA based on the best available information would ensure the SMIHCA meets the Council's intent to protect blue king crab habitat near Saint Matthew Island. The Council recommended that the eastern border of the SMIHCA meet the western border of the MGTZ so that no portion of the NBSRA would lie between these areas, simplifying management. This common boundary also would lie along a division in habitat types, with the habitat in the western side of the proposed MGTZ being more favorable to flatfish species and the habitat in the eastern side of the proposed SMIHCA being more favorable to crab species. More detailed information regarding the NMFS resource surveys and bottom habitats of the SMIHCA and the proposed MGTZ are in the EA/RIR/IRFA for this action (see ADDRESSES ).

The northern boundary of the MGTZ follows a whole number latitude to facilitate mapping and management in the area. Based on public testimony in October 2009, the Council recommended the proposed eastern boundary of the MGTZ to allow for a buffer between an area of fishing and the Nunivak Island, Etolin Strait, and Kuskokwim Bay Habitat Conservation Area, an area important for subsistence activities. The AFSC surveys in the western portion of the MGTZ show primarily flatfish species with little Pacific halibut occurrence.

Nonpelagic trawling within the MGTZ would require the use of modified nonpelagic trawl gear, regardless of the target species. This requirement would reduce the potential adverse effects on bottom habitat from nonpelagic trawl gear used for flatfish and the Pacific cod fishing in the MGTZ. The opening of this area to fishing with modified nonpelagic trawl gear was an incentive to the fishing industry to continue the development of modified nonpelagic trawl gear after the Council's recommendation of Amendment 89.

The Council also recommended four minor technical changes to the FMP. The first would remove the description of the Crab and Halibut Protection Area, which was effectively superseded by the Nearshore Bristol Bay Trawl Closure at § 679.22(a)(9). The second change would renumber figures and correct cross-references to these figures in Section 3 of the FMP, which became confused with the adoption of figures under Amendment 89. The third change would revise the northern boundary of the NBSRA to match the southern boundary of Statistical Area 400 at the Bering Strait. Area 514 of the Bering Sea subarea extends north to the southern boundary of Area 400 (Figure 2). The current northern boundary of the NBSRA leaves an area open to nonpelagic trawling near the Bering Strait due to the wrong coordinates being used for this boundary. The Council intended for the entire northern portion of the Bering Sea subarea to be part of the NBSRA, and this minor technical amendment would close this area of water currently open to nonpelagic trawling.

The fourth minor technical amendment would replace outdated language describing the structure of the Community Development Quota Program (CDQ), as stated in the reauthorized Magnuson-Stevens Act of 2006 (see section 305(i) of the Magnuson-Stevens Act). The 2006 amendments to the Magnuson-Stevens Act included changes in the way allocations to the CDQ groups are established and adjusted, listed the eligible communities and the groups through which they can participate in the CDQ program, and increased many of the groundfish allocations to the CDQ Program to 10.7 percent of the total allowable catch for each species. Amendment 94 would ensure that the FMP accurately describes these CDQ program changes from the Magnuson-Stevens Act.

NMFS is soliciting public comments on the proposed FMP amendment through August 30, 2010. A proposed rule that would implement Amendment 94 will be published in the Federal Register for public comment at a later date, following NMFS' evaluation pursuant to the Magnuson-Stevens Act. Public comments on the proposed rule must be received by the end of the comment period on Amendment 94 in order to be considered in the approval/disapproval decision on the amendment. All comments received on the amendment by the end of the comment period, whether specifically directed to the amendment or to the proposed rule, will be considered in the approval/disapproval decision. Comments received after that date will not be considered in the approval/disapproval decision on the amendment. To be considered, comments must be received-not just postmarked or otherwise transmitted-by 1700 hours, A.D.T., on the last day of the comment period (See DATES and ADDRESSES).