Endangered and Threatened Wildlife and Plants; Reopening of the Comment Period on Proposed Designation of Critical Habitat for the Southwestern Willow Flycatcher, 39227-39231 [05-13402]

Download as PDF Federal Register / Vol. 70, No. 129 / Thursday, July 7, 2005 / Proposed Rules (1) One of the multiple applications is submitted as a priority application; and (2) The remaining non-priority applications do not face a mutually exclusive challenge. 3. Section 73.865 is revised to read as follows: § 73.865 Assignment and transfer of LPFM authorizations. A change in the name of an LPFM licensee where no change in ownership or control is involved may be accomplished by written notification by the licensee to the Commission. 4. Section 73.870 is amended by revising paragraph (a) to read as follows: § 73.870 Processing of LPFM broadcast station applications. (a) Except as provided in § 73.872(c), a minor change for an LP100 station authorized under this subpart is limited to transmitter site relocations of 5.6 kilometers or less. Except as provided in § 73.872(c), a minor change for an LP10 station authorized under this subpart is limited to transmitter site relocations of 3.2 kilometers or less. Minor changes of LPFM stations may include changes in frequency to adjacent or IF frequencies or, upon a technical showing of reduced interference, to any frequency. * * * * * 5. Section 73.871 is amended by revising paragraph (c) to read as follows: § 73.871 Amendment of LPFM broadcast station applications. * * * * * (c) Only minor amendments to new and major change applications will be accepted after the close of the pertinent filing window. Subject to the provisions of this section, such amendments may be filed as a matter of right by the date specified in the FCC’s Public Notice announcing the acceptance of such applications. For the purposes of this section, and except as provided in § 73.872(c), minor amendments are limited to: (1) Site relocations of 3.2 kilometers or less for LP10 stations; (2) Site relocations of 5.6 kilometers or less for LP100 stations; (3) Changes in ownership where the original party or parties to an application retain more than a 50 percent ownership interest in the application as originally filed; and (4) Other changes in general and/or legal information. * * * * * 6. Section 73.872 is amended by revising paragraphs (c) introductory text, (c)(1), and (d)(1) to read as follows: VerDate jul<14>2003 16:01 Jul 06, 2005 Jkt 205001 § 73.872 Selection procedure for mutually exclusive LPFM applications. * * * * * (c) Voluntary time-sharing. If mutually exclusive applications have the same point total, any two or more of the tied applicants may propose to share use of the frequency by submitting, within 90 days of the release of a public notice announcing the tie, a time-share proposal. Such proposals shall be treated as amendments to the time-share proponents’ applications and shall become part of the terms of the station license. Such proposals may include amendments to the applications proposing to relocate the transmitter to a central location between the proposed transmitter sites, notwithstanding the site relocation limits set forth in §§ 73.870 and 73.871. Where such proposals include all of the tied applications, all of the tied applications will be treated as tentative selectees; otherwise, time-share proponents’ points will be aggregated to determine the tentative selectees. (1) Time-share proposals shall be in writing and signed by each time-share proponent, and shall satisfy the following requirements: (i) The proposal must specify the proposed hours of operation of each time-share proponent; (ii) The proposal must not include simultaneous operation of the timeshare proponents; (iii) Each time-share proponent must propose to operate for at least 10 hours per week; and (iv) If the time-share proponents propose to relocate the transmitter site to a central location beyond the site relocation limits set forth in § 73.871, the proposal must demonstrate that the proposed transmitter site is centrally located. * * * * * (d) * * * (1) If a tie among mutually exclusive applications is not resolved through time-sharing in accordance with paragraph (c) of this section, the tied applications will be reviewed for acceptability and applicants with tied, grantable applications will be eligible for equal, successive license terms of no less than one year each for a total combined term of eight years, in accordance with § 73.873. Eligible applications will be granted simultaneously, and the sequence of the applicants’ license terms will be determined by the sequence in which they file applications for licenses to cover their construction permits based on the day of filing, except that eligible applicants proposing same-site facilities PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 39227 will be required, within 30 days of written notification by Commission staff, to submit a written settlement agreement as to construction and license term sequence. Failure to submit such an agreement will result in the dismissal of the applications proposing same-site facilities and the grant of the remaining, eligible applications. * * * * * 7. Section 73.3598 is amended by revising paragraph (a) to read as follows: § 73.3598 Period of construction. (a) Each original construction permit for the construction of a new TV, AM, FM, or International Broadcast; low power TV; TV translator; TV booster; FM translator; FM booster; or LPFM station, or to make changes in such existing stations, shall specify a period of three years from the date of issuance of the original construction permit within which construction shall be completed and application for license filed. * * * * * [FR Doc. 05–13369 Filed 7–6–05; 8:45 am] BILLING CODE 6712–01–P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 RIN 1018–AT88 Endangered and Threatened Wildlife and Plants; Reopening of the Comment Period on Proposed Designation of Critical Habitat for the Southwestern Willow Flycatcher Fish and Wildlife Service, Interior. ACTION: Proposed rule; reopening of public comment period. AGENCY: SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period for the proposal to designate critical habitat for the southwestern willow flycatcher (Empidonax traillii extimus) to allow all interested parties to comment on the proposed critical habitat designation under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.); the draft economic analysis; draft environmental assessment; and the associated required determinations discussed below. Comments previously submitted on the October 12, 2004, proposed rule (69 FR 60705), and the December 13, 2004 (69 FR 72161), March 31, 2005 (70 FR E:\FR\FM\07JYP1.SGM 07JYP1 39228 Federal Register / Vol. 70, No. 129 / Thursday, July 7, 2005 / Proposed Rules 16474), and April 28, 2005 (70 FR 21988), publications, need not be resubmitted as they have been incorporated into the public record and will be fully considered in preparation of the final rule. DATES: We will consider all comments received from interested parties by July 18, 2005. Any comments received after the closing date may not be considered in the final determination on the proposal. ADDRESSES: If you wish to comment, you may submit your comments and materials by any one of several methods: 1. You may submit written comments and information by mail or handdelivery to Steve Spangle, Field Supervisor, Arizona Ecological Services Field Office, 2321 W. Royal Palm Road, Suite 103, Phoenix, Arizona 85021. 2. Written comments may be sent by facsimile to (602) 242–2513. 3. You may send your comments by electronic mail (e-mail) to WIFLcomments@fws.gov. You may obtain copies of the critical habitat proposal and supporting maps, draft economic analysis, and draft environmental assessment by mail by contacting the person listed under FOR FURTHER INFORMATION CONTACT, or by visiting our Web site at http:// arizonaes.fws.gov/SWWF_PCH_Oct.htm. You may review comments and materials received, and review supporting documentation used in preparation of this proposed rule by appointment, during normal business hours, at the above address. FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, Arizona Ecological Services Office (telephone 602–242–0210, facsimile 602–242–2513). SUPPLEMENTARY INFORMATION: Background We proposed to designate for the southwestern willow flycatcher approximately 376,095 acres (ac) (152,124 hectares (ha)) [including approximately 1,556 stream miles (2,508 stream kilometers)] of critical habitat, which includes various stream segments and their associated riparian areas, not exceeding the 100-year floodplain or flood-prone area, on a combination of Federal, State, tribal, and private lands in southern California, southern Nevada, southwestern Utah, southcentral Colorado, Arizona, and New Mexico. The proposed rule was published in the Federal Register (69 FR 60705) on October 12, 2004, pursuant to a court order. On September 30, 2003, in response to a complaint brought by the Center for VerDate jul<14>2003 16:01 Jul 06, 2005 Jkt 205001 Biological Diversity, the U.S. District Court of New Mexico instructed us to propose critical habitat by September 30, 2004, and publish a final rule by September 30, 2005. Additional background information is available in the October 12, 2004, proposal to designate critical habitat. Critical habitat identifies specific areas that are essential to the conservation of a listed species and that may require special management considerations or protection. If the proposed rule is made final, section 7 of the Act will prohibit 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, pursuant to section 7(a)(2) of the Act. Section 4 of the Act requires that we consider economic and other relevant impacts prior to making a final decision on what areas to designate as critical habitat. We may revise the proposal, or its supporting documents, to incorporate or address new information received during the 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 such exclusion will not result in the extinction of the species. During the comment period we anticipate receiving Tribal conservation plans and conservation plans from local government entities with authority over areas covered under the proposed designation. We note that areas covered under such plans, received during the comment period, will be considered for exclusion in the final rule pursuant to section 4(b)(2) of the Act. Additionally, as noted in our proposal, we will consider excluding, pursuant to section 4(b)(2) of the Act, (1) legally operative Habitat Conservation Plans (HCPs) that cover the species and provide assurances that the conservation measures for the species will be implemented and effective, as well as draft HCPs that cover the species, have undergone public review and comment, and provide assurances that the conservation measures for the species will be implemented and effective (i.e., pending HCPs), (2) National Wildlife Refuges with Comprehensive Conservation Plans (CCPs) or conservation programs that provide assurances that the conservation measures for the species will be implemented and effective, (3) water systems that provide flood control or PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 water supply benefits, and (4) tribal lands. Pursuant to 50 CFR 424.16(c)(2), we may extend or reopen a comment period upon finding that there is good cause to do so. In our proposed rule, we withheld our determination of whether this designation would be in compliance with certain Executive orders and statutes until we completed our draft economic analysis of the proposed designation so that we would have the factual basis for our determination. This notice serves to provide the factual basis for this determination, as outlined below. We deem this consideration as sufficient cause to reopen the comment period. We are required by court order to complete the final designation of critical habitat for the southwestern willow flycatcher by September 30, 2005. To meet this date, all comments on or proposed revisions to the proposed rule need to be submitted to us by July 18, 2005 (see DATES). Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address, which we will honor to the extent allowable by law. If you wish us to withhold your name or address, you must state this request prominently at the beginning of your comments. However, we will not consider anonymous comments. To the extent consistent with applicable law, we will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Required Determinations—Amended Regulatory Planning and Review In accordance with Executive Order 12866, this document is a significant rule because it may raise novel legal and policy issues. However, based on our draft economic analysis, it is not anticipated that the proposed designation of critical habitat for the southwestern willow flycatcher will result in an annual effect on the economy of $100 million or more or affect the economy in a material way. Due to the timeline for publication in the Federal Register, the Office of Management and Budget (OMB) has not formally reviewed the proposed rule or accompanying economic analysis. Further, Executive Order 12866 directs Federal Agencies promulgating regulations to evaluate regulatory alternatives (Office of Management and E:\FR\FM\07JYP1.SGM 07JYP1 Federal Register / Vol. 70, No. 129 / Thursday, July 7, 2005 / Proposed Rules Budget, Circular A–4, September 17, 2003). Pursuant to Circular A–4, once it has been determined that the Federal regulatory action is appropriate, then the agency will need to consider alternative regulatory approaches. Since the determination of critical habitat is a statutory requirement pursuant to the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), we must then evaluate alternative regulatory approaches, where feasible, when promulgating a designation of critical habitat. In developing our designations of critical habitat, we consider economic impacts, impacts to national security, and other relevant impacts pursuant to section 4(b)(2) of the Act. Based on the discretion allowable under this provision, we may exclude any particular area from the designation of critical habitat providing that the benefits of such exclusion outweighs the benefits of specifying the area as critical habitat and that such exclusion would not result in the extinction of the species. As such, we believe that the evaluation of the inclusion or exclusion of particular areas, or combination thereof, in a designation constitutes our regulatory alternative analysis. 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 SBREFA), 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. As noted above, in our proposed rule we withheld our determination of whether this designation would result in a significant effect as defined under SBREFA until we completed our draft economic analysis of the proposed designation so that we would have the factual basis for our determination. According to the Small Business Administration (SBA), small entities include small organizations, such as independent nonprofit organizations and small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents, as well as small businesses (13 CFR 121.201). Small businesses include manufacturing and VerDate jul<14>2003 16:01 Jul 06, 2005 Jkt 205001 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 this proposed designation of critical habitat for the southwestern willow flycatcher would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities (e.g., water management and supply, livestock grazing, land development, recreation). We considered each industry or category individually to determine if certification is appropriate. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement; some kinds of activities are unlikely to have any Federal involvement and so will not be affected by the designation of critical habitat. Designation of critical habitat only affects activities conducted, funded, permitted or authorized by Federal agencies; non-Federal activities are not affected by the designation. If this proposed critical habitat designation is made final, Federal agencies must consult with us if their activities may affect designated critical habitat. Consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process. In our economic analysis of this proposed designation we evaluated the potential economic effects on small business entities and small governments resulting from conservation actions related to the listing of this species and proposed designation of its critical habitat. We evaluated small business entities in four categories: Water management and supply activities, livestock grazing, land development, and recreation. The following summary of the information contained in Appendix A of the draft economic analysis provides the basis for our determination. PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 39229 Water Management and Water Supply Activities Under one scenario analyzed in the draft economic analysis, water operators are assumed to be required to change their management regimes to avoid adverse affects to southwestern willow flycatcher habitat, resulting in a loss of water for beneficial use (i.e. reservoir pools will be limited to current levels in order to avoid inundation of southwestern willow flycatcher habitat). Facilities assessed under this scenario include Lake Hodges, Cuyamaca Reservoir, Vail Dam, Pleasant Valley Reservoir, Isabella Dam, Hoover Dam, Parker Dam, Alamo Dam, Roosevelt Dam, and Horseshoe Dam. Under this scenario, it is expected that this economic cost will result in higher water prices to commercial and residential users; however, we find that no small businesses are directly impacted under this scenario. Some water users may be more directly affected by changes in water supply that could occur as a result of southwestern willow flycatcher conservation activities, specifically, agricultural users dependent on the drought reserves provided by these systems. Appendix A of the draft economic analysis provides a profile of the agricultural users that are at greatest risk from direct losses in water supply under this scenario. The four water systems that provide water to agricultural users include Lake Isabella (including the North Kern Water Storage District, the Buena Vista Storage District, and the City of Bakersfield Water Resources Department); Roosevelt and Horseshoe (the Salt River Project operates six reservoirs and dams on the Salt and Verde Rivers); Coolidge Dam (San Carlos Irrigation Project); and Lower Colorado River (water from the Colorado River is diverted to six States and is used for every purpose, including agricultural uses). Livestock Grazing Activities Impacts to livestock grazing include an estimated reduction in the level of grazing effort within the proposed designation of 89,300 AUM (animal unit months), of which 1,300 are federally permitted, and 88,000 are on private lands. The AUM reduction could represent approximately 1 percent of AUMs for each of 105 affected ranchers holding Federal grazing permits in the proposed designation cumulatively over 20 years. On non-Federal lands, impacts on grazing efforts are more uncertain, since maps describing the overlap of privately grazed lands and the designation are not available. However, E:\FR\FM\07JYP1.SGM 07JYP1 39230 Federal Register / Vol. 70, No. 129 / Thursday, July 7, 2005 / Proposed Rules if each ranch affected is small, then 0 to 110 ranches cumulatively over 20 years could experience a total reduction in private lands grazing effort. We believe that this would represent approximately 0.3 percent of beef cow operations in affected States. However, we will continue to evaluate the potential economic impacts by determining the number of AUMs per region and the number of ranches per the region to determine if our assessment is accurate. Land Development Activities Impacts to development activities within the proposed designation include land value loss, other project modifications, California Environmental Quality Act costs, and project delay costs in the Mojave and Santa Ana Management Units in California. It was determined in the draft economic analysis that less than 1 percent of land developers will be affected, and 0.02 percent of annual revenues of small land developers in this area may be lost. Recreation Activities Impacts to recreation activities include limitations on vehicle use, fires, and cigarette smoking in two areas near Roosevelt Lake on the Tonto National Forest, and fewer trips to the area for hunting and fishing for a total annual impact of approximately 0.25 percent of annual small business revenues in Gila County. Based on this data we have determined that this proposed designation would not affect a substantial number of small businesses involved in or affected by water management and supply activities, livestock grazing, land development, and recreation. Further, we have determined that this proposed designation would also not result in a significant effect to the annual sales of those small businesses impacted by this proposed designation. As such, we are certifying that this proposed designation of critical habitat would not result in a significant economic impact on a substantial number of small entities. Please refer to Appendix A of our draft economic analysis of this designation for a more detailed discussion of potential economic impacts to small business entities. Executive Order 13211 On May 18, 2001, the President issued Executive Order (E.O.) 13211 on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This proposed rule is considered a significant VerDate jul<14>2003 16:01 Jul 06, 2005 Jkt 205001 regulatory action under E.O. 12866 due to it potentially raising novel legal and policy issues, but it is not expected to significantly affect energy supplies, distribution, or use. Appendix B of the draft economic analysis provides a detailed discussion and analysis of this determination. Specifically, two criteria were determined to be 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 draft analysis finds that no net reduction in electricity production is anticipated, and thus we do not anticipate that the suggested OMB threshold of 1 billion kilowatt hours will be exceeded. In addition, total financial impacts related to southwestern willow flycatcher conservation activities ($2.7 million annually) represent 0.02 percent of the estimated annual baseline cost of regional energy production, and this is well below the 1 percent threshold suggested by OMB. Therefore, this action is not a significant action, and no Statement of Energy Effects is required. Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.) In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501), 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. (At the time of enactment, PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 these entitlement programs were: Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement.) ‘‘Federal private sector mandate’’ includes a regulation that ‘‘would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.’’ The designation of critical habitat 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. Non-Federal entities that receive Federal funding, assistance, permits, or otherwise require approval or authorization from a Federal agency for an action, 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 nonFederal 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) The economic analysis discusses potential impacts of critical habitat designation for the southwestern willow flycatcher on water management activities, administrative costs, livestock grazing, residential and commercial development activities, Tribes, transportation activities, recreation activities, and fire management activities. The analysis estimates that annual costs of the rule could range from $29.2 to $39.5 million annually using the most likely costs scenario. Impacts are largely anticipated to affect water operators and Federal and State agencies, with some effects on livestock grazing operations, land development activities, and recreation activities. Impacts on small governments are not anticipated, or they are anticipated to be passed through to consumers. For example, costs to water operations would be expected to be passed on to consumers in the form of price changes. Consequently, for the reasons discussed above, we do not believe that the designation of critical habitat for the southwestern willow flycatcher will E:\FR\FM\07JYP1.SGM 07JYP1 Federal Register / Vol. 70, No. 129 / Thursday, July 7, 2005 / Proposed Rules significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required. Takings In accordance with Executive Order 12630 (‘‘Government Actions and Interference with Constitutionally Protected Private Property Rights’’), we have analyzed the potential takings implications of proposing critical habitat for the southwestern willow flycatcher in a takings implications assessment. The takings implications assessment concludes that this proposed designation of critical habitat for the southwestern willow flycatcher does not pose significant takings implications. Authority The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.). Dated: June 30, 2005. Craig Manson, Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 05–13402 Filed 7–6–05; 8:45 am] BILLING CODE 4310–55–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 223 and 224 [I.D. 062005C] Endangered and Threatened Species: Recovery Plan Preparation for 16 Evolutionarily Significant Units (ESUs) of Pacific Salmon and Steelhead National Marine Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of intent; request for information. AGENCY: SUMMARY: NMFS announces its intent to develop recovery plans for 16 ESUs of Pacific salmon and steelhead in the Northwest listed as threatened or endangered under the Endangered Species Act (ESA) and requests information from the public. NMFS is required by the ESA to develop and implement recovery plans for the conservation and survival of listed species. NMFS is working with state, Federal, tribal and local entities in Washington, Oregon and Idaho to produce draft recovery plans by December 2005. VerDate jul<14>2003 16:01 Jul 06, 2005 Jkt 205001 All information must be received no later than 5 p.m. Pacific Daylight Time on September 6, 2005. ADDRESSES: Information may be submitted by any of the following methods: • E-mail: The mailbox address for submitting e-mail information for recovery planning is RecoveryInfo.nwr@noaa.gov. Please include in the subject line of the e-mail comment the identifier ‘‘Information for ESA Recovery Planning, Attention: (insert name of appropriate NMFS Recovery Coordinator)’’ and specify the recovery domain to which your information applies (see FOR FURTHER INFORMATION CONTACT). • Federal e-rulemaking portal: http:// www.regulations.gov • Mail: Submit written comments and information to Salmon Recovery Branch Chief, NMFS, Salmon Recovery Division, 1201 NE Lloyd Boulevard, Suite 1100, Portland, Oregon, 97232– 1274. Please identify information as regarding the ‘‘Information for ESA Recovery Planning.’’ • Hand Delivery/Courier: NMFS, Salmon Recovery Division, 1201 NE Lloyd Boulevard, Suite 1100, Portland, Oregon, 97232–1274. You can handdeliver written information to our office at the street address above. Business hours are 8 a.m. to 5 p.m., Monday through Friday, except Federal holidays. • Fax: 503–872–2737. Please identify the fax comment as regarding ‘‘Information for Recovery Plans’’ and specify the recovery domain to which your information applies (see FOR FURTHER INFORMATION CONTACT). FOR FURTHER INFORMATION CONTACT: NMFS, Northwest Region, Salmon Recovery Division, and contact the recovery coordinator listed below for the area in which you are interested. Additional salmon-related materials are available on the Internet at www.nwr.noaa.gov. Puget Sound Recovery Domain: Elizabeth Babcock, (phone: 206–526– 4505), email address: Elizabeth.Babcock@noaagov; Upper Columbia Recovery Domain: Lynn Hatcher, (phone: 509–962–8911 x 223), email address: Lynn.Hatcher@noaa.gov; Mid Columbia Recovery Domain: Paula Burgess, (phone: 503–808–6525), email address: Paula.Burgess@noaa.gov; Willamette/Lower Columbia Recovery Domain: Patty Dornbusch, (phone: 503– 230–5430), email address: Patty.Dornbusch@noaa.gov; Oregon Coast Recovery Domain: Rosemary Furfey, (phone: 503–231–2149), email address: Rosemary.Furfey@noaa.gov; Snake River Recovery Domain: David DATES: PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 39231 Mabe, (phone: 208–378–5698), email address: David.Mabe@noaa.gov. SUPPLEMENTARY INFORMATION: NMFS is charged with the recovery of Pacific salmon and steelhead species listed under the ESA. Recovery under the Act means that listed species and their ecosystems are restored, and their future secured, so that the protections of the ESA are no longer necessary. There are 15 ‘‘distinct population segments’’ or ESUs of salmon and steelhead listed as threatened or endangered in Oregon, Washington, and Idaho: Chinook Salmon (Oncorhynchus tshawytscha): Upper Willamette River; Lower Columbia River; Upper Columbia River Spring-run; Puget Sound; Snake River Fall-run; and Snake River Spring/ Summer-run. Chum Salmon (Oncorhynchus keta): Hood Canal summer-run; Columbia River. Sockeye Salmon (Oncorhynchus nerka): Snake River; Ozette Lake. Steelhead Salmon (Oncorhynchus mykiss): Upper Willamette River; Lower Columbia River; Middle Columbia River; Upper Columbia River; Snake River Basin. NMFS has proposed to list Oregon Coast coho and the Lower Columbia River coho ESUs as threatened (69 FR 33102; June 14, 2004). If these ESUs are listed, they will be included in the Oregon Coast and Willamette/Lower Columbia River recovery planning efforts. Notice of recovery plans for the Southern Oregon/Northern California Coast coho ESU will be announced separately with other California ESUs. The ESA requires that NMFS develop and implement recovery plans for the conservation and survival of endangered and threatened species. These recovery plans provide blueprints to determine priority recovery actions for funding and implementation. The ESA specifies that recovery plans must include: (1) a description of site-specific management actions as may be necessary to achieve the plan’s goals for the conservation and survival of the species; (2) objective, measurable criteria, which when met, would result in the species being removed from the list; and (3) estimates of the time and costs required to achieve the plan’s goal and achieve intermediate steps toward that goal. NMFS will take into consideration information provided during this comment period to prepare draft recovery plans. In order to develop recovery plans that address multiple species in an ecosystem context, NMFS organized the listed and proposed ESUs in the Northwest into six recovery areas or E:\FR\FM\07JYP1.SGM 07JYP1

Agencies

[Federal Register Volume 70, Number 129 (Thursday, July 7, 2005)]
[Proposed Rules]
[Pages 39227-39231]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-13402]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT88


Endangered and Threatened Wildlife and Plants; Reopening of the 
Comment Period on Proposed Designation of Critical Habitat for the 
Southwestern Willow Flycatcher

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of public comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the public comment period for the proposal to designate 
critical habitat for the southwestern willow flycatcher (Empidonax 
traillii extimus) to allow all interested parties to comment on the 
proposed critical habitat designation under the Endangered Species Act 
of 1973, as amended (Act) (16 U.S.C. 1531 et seq.); the draft economic 
analysis; draft environmental assessment; and the associated required 
determinations discussed below.
    Comments previously submitted on the October 12, 2004, proposed 
rule (69 FR 60705), and the December 13, 2004 (69 FR 72161), March 31, 
2005 (70 FR

[[Page 39228]]

16474), and April 28, 2005 (70 FR 21988), publications, need not be 
resubmitted as they have been incorporated into the public record and 
will be fully considered in preparation of the final rule.

DATES: We will consider all comments received from interested parties 
by July 18, 2005. Any comments received after the closing date may not 
be considered in the final determination on the proposal.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials by any one of several methods:
    1. You may submit written comments and information by mail or hand-
delivery to Steve Spangle, Field Supervisor, Arizona Ecological 
Services Field Office, 2321 W. Royal Palm Road, Suite 103, Phoenix, 
Arizona 85021.
    2. Written comments may be sent by facsimile to (602) 242-2513.
    3. You may send your comments by electronic mail (e-mail) to 
WIFLcomments@fws.gov.
    You may obtain copies of the critical habitat proposal and 
supporting maps, draft economic analysis, and draft environmental 
assessment by mail by contacting the person listed under FOR FURTHER 
INFORMATION CONTACT, or by visiting our Web site at http://
arizonaes.fws.gov/SWWF_PCH_Oct.htm. You may review comments and 
materials received, and review supporting documentation used in 
preparation of this proposed rule by appointment, during normal 
business hours, at the above address.

FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, 
Arizona Ecological Services Office (telephone 602-242-0210, facsimile 
602-242-2513).

SUPPLEMENTARY INFORMATION:

Background

    We proposed to designate for the southwestern willow flycatcher 
approximately 376,095 acres (ac) (152,124 hectares (ha)) [including 
approximately 1,556 stream miles (2,508 stream kilometers)] of critical 
habitat, which includes various stream segments and their associated 
riparian areas, not exceeding the 100-year floodplain or flood-prone 
area, on a combination of Federal, State, tribal, and private lands in 
southern California, southern Nevada, southwestern Utah, south-central 
Colorado, Arizona, and New Mexico. The proposed rule was published in 
the Federal Register (69 FR 60705) on October 12, 2004, pursuant to a 
court order.
    On September 30, 2003, in response to a complaint brought by the 
Center for Biological Diversity, the U.S. District Court of New Mexico 
instructed us to propose critical habitat by September 30, 2004, and 
publish a final rule by September 30, 2005. Additional background 
information is available in the October 12, 2004, proposal to designate 
critical habitat.
    Critical habitat identifies specific areas that are essential to 
the conservation of a listed species and that may require special 
management considerations or protection. If the proposed rule is made 
final, section 7 of the Act will prohibit 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, pursuant to section 7(a)(2) of the Act.
    Section 4 of the Act requires that we consider economic and other 
relevant impacts prior to making a final decision on what areas to 
designate as critical habitat. We may revise the proposal, or its 
supporting documents, to incorporate or address new information 
received during the 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 such exclusion will not result in the 
extinction of the species. During the comment period we anticipate 
receiving Tribal conservation plans and conservation plans from local 
government entities with authority over areas covered under the 
proposed designation. We note that areas covered under such plans, 
received during the comment period, will be considered for exclusion in 
the final rule pursuant to section 4(b)(2) of the Act. Additionally, as 
noted in our proposal, we will consider excluding, pursuant to section 
4(b)(2) of the Act, (1) legally operative Habitat Conservation Plans 
(HCPs) that cover the species and provide assurances that the 
conservation measures for the species will be implemented and 
effective, as well as draft HCPs that cover the species, have undergone 
public review and comment, and provide assurances that the conservation 
measures for the species will be implemented and effective (i.e., 
pending HCPs), (2) National Wildlife Refuges with Comprehensive 
Conservation Plans (CCPs) or conservation programs that provide 
assurances that the conservation measures for the species will be 
implemented and effective, (3) water systems that provide flood control 
or water supply benefits, and (4) tribal lands.
    Pursuant to 50 CFR 424.16(c)(2), we may extend or reopen a comment 
period upon finding that there is good cause to do so. In our proposed 
rule, we withheld our determination of whether this designation would 
be in compliance with certain Executive orders and statutes until we 
completed our draft economic analysis of the proposed designation so 
that we would have the factual basis for our determination. This notice 
serves to provide the factual basis for this determination, as outlined 
below. We deem this consideration as sufficient cause to reopen the 
comment period.
    We are required by court order to complete the final designation of 
critical habitat for the southwestern willow flycatcher by September 
30, 2005. To meet this date, all comments on or proposed revisions to 
the proposed rule need to be submitted to us by July 18, 2005 (see 
DATES).
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home address, which we will honor to the extent allowable by law. 
If you wish us to withhold your name or address, you must state this 
request prominently at the beginning of your comments. However, we will 
not consider anonymous comments. To the extent consistent with 
applicable law, we will make all submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives or officials of organizations or businesses, available 
for public inspection in their entirety.

Required Determinations--Amended

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule because it may raise novel legal and policy issues. 
However, based on our draft economic analysis, it is not anticipated 
that the proposed designation of critical habitat for the southwestern 
willow flycatcher will result in an annual effect on the economy of 
$100 million or more or affect the economy in a material way. Due to 
the timeline for publication in the Federal Register, the Office of 
Management and Budget (OMB) has not formally reviewed the proposed rule 
or accompanying economic analysis.
    Further, Executive Order 12866 directs Federal Agencies 
promulgating regulations to evaluate regulatory alternatives (Office of 
Management and

[[Page 39229]]

Budget, Circular A-4, September 17, 2003). Pursuant to Circular A-4, 
once it has been determined that the Federal regulatory action is 
appropriate, then the agency will need to consider alternative 
regulatory approaches. Since the determination of critical habitat is a 
statutory requirement pursuant to the Endangered Species Act of 1973, 
as amended (Act) (16 U.S.C. 1531 et seq.), we must then evaluate 
alternative regulatory approaches, where feasible, when promulgating a 
designation of critical habitat.
    In developing our designations of critical habitat, we consider 
economic impacts, impacts to national security, and other relevant 
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion 
allowable under this provision, we may exclude any particular area from 
the designation of critical habitat providing that the benefits of such 
exclusion outweighs the benefits of specifying the area as critical 
habitat and that such exclusion would not result in the extinction of 
the species. As such, we believe that the evaluation of the inclusion 
or exclusion of particular areas, or combination thereof, in a 
designation constitutes our regulatory alternative analysis.

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 SBREFA), 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. As noted above, in 
our proposed rule we withheld our determination of whether this 
designation would result in a significant effect as defined under 
SBREFA until we completed our draft economic analysis of the proposed 
designation so that we would have the factual basis for our 
determination.
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as 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 this proposed designation of critical habitat for 
the southwestern willow flycatcher would affect a substantial number of 
small entities, we considered the number of small entities affected 
within particular types of economic activities (e.g., water management 
and supply, livestock grazing, land development, recreation). We 
considered each industry or category individually to determine if 
certification is appropriate. In estimating the numbers of small 
entities potentially affected, we also considered whether their 
activities have any Federal involvement; some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
the designation of critical habitat. Designation of critical habitat 
only affects activities conducted, funded, permitted or authorized by 
Federal agencies; non-Federal activities are not affected by the 
designation.
    If this proposed critical habitat designation is made final, 
Federal agencies must consult with us if their activities may affect 
designated critical habitat. Consultations to avoid the destruction or 
adverse modification of critical habitat would be incorporated into the 
existing consultation process.
    In our economic analysis of this proposed designation we evaluated 
the potential economic effects on small business entities and small 
governments resulting from conservation actions related to the listing 
of this species and proposed designation of its critical habitat. We 
evaluated small business entities in four categories: Water management 
and supply activities, livestock grazing, land development, and 
recreation. The following summary of the information contained in 
Appendix A of the draft economic analysis provides the basis for our 
determination.
Water Management and Water Supply Activities
    Under one scenario analyzed in the draft economic analysis, water 
operators are assumed to be required to change their management regimes 
to avoid adverse affects to southwestern willow flycatcher habitat, 
resulting in a loss of water for beneficial use (i.e. reservoir pools 
will be limited to current levels in order to avoid inundation of 
southwestern willow flycatcher habitat). Facilities assessed under this 
scenario include Lake Hodges, Cuyamaca Reservoir, Vail Dam, Pleasant 
Valley Reservoir, Isabella Dam, Hoover Dam, Parker Dam, Alamo Dam, 
Roosevelt Dam, and Horseshoe Dam. Under this scenario, it is expected 
that this economic cost will result in higher water prices to 
commercial and residential users; however, we find that no small 
businesses are directly impacted under this scenario.
    Some water users may be more directly affected by changes in water 
supply that could occur as a result of southwestern willow flycatcher 
conservation activities, specifically, agricultural users dependent on 
the drought reserves provided by these systems. Appendix A of the draft 
economic analysis provides a profile of the agricultural users that are 
at greatest risk from direct losses in water supply under this 
scenario. The four water systems that provide water to agricultural 
users include Lake Isabella (including the North Kern Water Storage 
District, the Buena Vista Storage District, and the City of Bakersfield 
Water Resources Department); Roosevelt and Horseshoe (the Salt River 
Project operates six reservoirs and dams on the Salt and Verde Rivers); 
Coolidge Dam (San Carlos Irrigation Project); and Lower Colorado River 
(water from the Colorado River is diverted to six States and is used 
for every purpose, including agricultural uses).
Livestock Grazing Activities
    Impacts to livestock grazing include an estimated reduction in the 
level of grazing effort within the proposed designation of 89,300 AUM 
(animal unit months), of which 1,300 are federally permitted, and 
88,000 are on private lands. The AUM reduction could represent 
approximately 1 percent of AUMs for each of 105 affected ranchers 
holding Federal grazing permits in the proposed designation 
cumulatively over 20 years. On non-Federal lands, impacts on grazing 
efforts are more uncertain, since maps describing the overlap of 
privately grazed lands and the designation are not available. However,

[[Page 39230]]

if each ranch affected is small, then 0 to 110 ranches cumulatively 
over 20 years could experience a total reduction in private lands 
grazing effort. We believe that this would represent approximately 0.3 
percent of beef cow operations in affected States. However, we will 
continue to evaluate the potential economic impacts by determining the 
number of AUMs per region and the number of ranches per the region to 
determine if our assessment is accurate.
Land Development Activities
    Impacts to development activities within the proposed designation 
include land value loss, other project modifications, California 
Environmental Quality Act costs, and project delay costs in the Mojave 
and Santa Ana Management Units in California. It was determined in the 
draft economic analysis that less than 1 percent of land developers 
will be affected, and 0.02 percent of annual revenues of small land 
developers in this area may be lost.
Recreation Activities
    Impacts to recreation activities include limitations on vehicle 
use, fires, and cigarette smoking in two areas near Roosevelt Lake on 
the Tonto National Forest, and fewer trips to the area for hunting and 
fishing for a total annual impact of approximately 0.25 percent of 
annual small business revenues in Gila County.
    Based on this data we have determined that this proposed 
designation would not affect a substantial number of small businesses 
involved in or affected by water management and supply activities, 
livestock grazing, land development, and recreation. Further, we have 
determined that this proposed designation would also not result in a 
significant effect to the annual sales of those small businesses 
impacted by this proposed designation. As such, we are certifying that 
this proposed designation of critical habitat would not result in a 
significant economic impact on a substantial number of small entities. 
Please refer to Appendix A of our draft economic analysis of this 
designation for a more detailed discussion of potential economic 
impacts to small business entities.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order (E.O.) 13211 
on regulations that significantly affect energy supply, distribution, 
and use. E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. This proposed rule is 
considered a significant regulatory action under E.O. 12866 due to it 
potentially raising novel legal and policy issues, but it is not 
expected to significantly affect energy supplies, distribution, or use. 
Appendix B of the draft economic analysis provides a detailed 
discussion and analysis of this determination. Specifically, two 
criteria were determined to be 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 draft analysis finds that no net reduction in electricity 
production is anticipated, and thus we do not anticipate that the 
suggested OMB threshold of 1 billion kilowatt hours will be exceeded. 
In addition, total financial impacts related to southwestern willow 
flycatcher conservation activities ($2.7 million annually) represent 
0.02 percent of the estimated annual baseline cost of regional energy 
production, and this is well below the 1 percent threshold suggested by 
OMB. Therefore, this action is not a significant action, and no 
Statement of Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), 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. (At the 
time of enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement.) ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance; or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat 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. Non-Federal entities that receive Federal 
funding, assistance, permits, or otherwise require approval or 
authorization from a Federal agency for an action, 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) The economic analysis discusses potential impacts of critical 
habitat designation for the southwestern willow flycatcher on water 
management activities, administrative costs, livestock grazing, 
residential and commercial development activities, Tribes, 
transportation activities, recreation activities, and fire management 
activities. The analysis estimates that annual costs of the rule could 
range from $29.2 to $39.5 million annually using the most likely costs 
scenario. Impacts are largely anticipated to affect water operators and 
Federal and State agencies, with some effects on livestock grazing 
operations, land development activities, and recreation activities. 
Impacts on small governments are not anticipated, or they are 
anticipated to be passed through to consumers. For example, costs to 
water operations would be expected to be passed on to consumers in the 
form of price changes. Consequently, for the reasons discussed above, 
we do not believe that the designation of critical habitat for the 
southwestern willow flycatcher will

[[Page 39231]]

significantly or uniquely affect small government entities. As such, a 
Small Government Agency Plan is not required.

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
proposing critical habitat for the southwestern willow flycatcher in a 
takings implications assessment. The takings implications assessment 
concludes that this proposed designation of critical habitat for the 
southwestern willow flycatcher does not pose significant takings 
implications.

Authority

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

    Dated: June 30, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-13402 Filed 7-6-05; 8:45 am]
BILLING CODE 4310-55-P