Proposed Rules. Notice of proposed rulemaking (NPRM)

35,909 words·~163 min read·/register/2006/01/04/06-1·

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 4810-33-P 6210-01-P 6714-01-P 6720-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2005-23475; Directorate Identifier 2005-NM-117-AD] RIN 2120-AA64 Airworthiness Directives; Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model ERJ 170 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive

(AD)for all EMBRAER Model ERJ 170 airplanes. This proposed AD would require revising the Airworthiness Limitations section

(ALS)of the airplane maintenance manual

(AMM)to include new, specific maintenance tasks related to the incorporation of a new horizontal stabilizer actuator. This proposed AD also would require revising the ALS of the AMM to include revised repetitive inspection intervals for certain tasks in the maintenance plan related to the aileron and flap/slat flight controls system. This proposed AD results from safety assessments of the aileron and flap/slat flight controls system, conducted after the type certification of the airplane, which showed that some dormant faults did not comply with the safety assessment criteria. We are proposing this AD to prevent failure of the aileron and flap/slat controls system, which could result in reduced controllability of the airplane. DATES: We must receive comments on this proposed AD by February 3, 2006. ADDRESSES: Use one of the following addresses to submit comments on this proposed AD. • DOT Docket Web site: Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • Government-wide rulemaking Web site: Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • Mail: Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street SW., Nassif Building, room PL-401, Washington, DC 20590. • Fax:

(202)493-2251. • Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Contact Empresa Brasileira de Aeronautica S.A. (EMBRAER), P.O. Box 343—CEP 12.225, Sao Jose dos Campos—SP, Brazil, for service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Todd Thompson, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone

(425)227-1175; fax

(425)227-1149. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Include the docket number “FAA-2005-23475; Directorate Identifier 2005-NM-117-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or you may visit *http://dms.dot.gov* . Examining the Docket You may examine the AD docket on the Internet at *http://dms.dot.gov* , or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone

(800)647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the Docket Management System receives them. Discussion The Departmento de Aviacao Civil (DAC), which is the airworthiness authority for Brazil, notified us that an unsafe condition may exist on all EMBRAER Model ERJ 170 airplanes. The DAC advises that a review of safety assessment reports for aileron and flap/slat flight control systems, conducted after type certification of the airplane, showed that certain assumptions used in the analysis of some dormant faults did not comply with the applicable safety assessment criteria. If those dormant faults persist and are combined with other faults that could become evident during flight, the safety margins for the airplane could be reduced significantly. The DAC also advises that incorporating a new horizontal stabilizer actuator for the affected airplanes means that new, specific maintenance tasks are required for the Model ERJ 170 fleet. Dormant faults and improper maintenance tasks, if not corrected, could result in failure of the aileron and flap/slat controls system, and consequent reduced controllability of the airplane. Relevant Service Information EMBRAER has also issued Temporary Revision

(TR)1-3, dated December 27, 2004, to EMBRAER 170 Maintenance Review Board

(MRB)Report MRB-1621. This document revises the repetitive inspection intervals of MRB tasks 27-11-00-002 (Operational Check of Control-Yoke Disconnect System) and 27-11-11-001 (Operational Check of Aileron Override Unit). EMBRAER has also issued the following revisions to the maintenance tasks in the EMBRAER 170 Airplane Maintenance Manual (AMM), all dated January 25, 2005. Any applicable corrective actions are done in accordance with the applicable AMM task. EMBRAER Maintenance Tasks AMM chapter Task No. Description 27-11-03 27-11-03-710-801-A Test for broken aileron control cables, and replace the aileron control cable if necessary. 27-11-03 27-11-03-720-801-A Test the tension of the aileron control cables, and adjust if necessary. 27-41-01 27-41-01-210-801-A Do a general visual inspection for the presence of locking nuts in the cover plate of the external ball return for the horizontal stabilizer trim actuator (HSTA); and for cracks, or excessive damage of the external ball return cover plate. If one or more nuts are missing or if there is damage on the cover plate, the corrective action is to replace the HSTA. 27-41-01 27-41-01-220-801-A Do a detailed visual inspection of the HSTA no-back gearbox for signs of oil leakage, oil contamination, damaged gears, damaged pawl, damaged O-ring, damaged lower gimbal assembly, damaged or loose wiring, broken wire harnesses, damaged bonding strap, and cracked mechanical stops; and corrective actions if necessary. The corrective actions range from replacing a component to replacing the HSTA (for a damaged pawl, damage to the lower gimbal assembly, damaged bonding strap, and damaged mechanical stop). 27-41-01 27-41-01-220-802-A Do a detailed visual inspection for damage of the ballscrew of the HSTA, and replace the HSTA if necessary. 27-81-01 27-81-01-710-801-A Adjust slat actuators and do an operational test. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The DAC mandated the service information and issued Brazilian airworthiness directive 2005-03-02, dated April 20, 2005, to ensure the continued airworthiness of these airplanes in Brazil. FAA's Determination and Requirements of the Proposed AD This airplane model is manufactured in Brazil and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DAC has kept the FAA informed of the situation described above. We have examined the DAC's findings, evaluated all pertinent information, and determined that we need to issue an AD for airplanes of this type design that are certificated for operation in the United States. Therefore, we are proposing this AD, which would require revising the Airworthiness Limitations section of the Instructions for Continued Airworthiness in the EMBRAER 170 AMM to include new, specific maintenance tasks related to the incorporation of a new horizontal stabilizer actuator; and revised repetitive inspection intervals for certain tasks in the maintenance plan related to the aileron and flap/slat flight controls system. Difference Between the Proposed AD and the Brazilian Airworthiness Directive Brazilian airworthiness directive 2005-03-02 specifies that operators should alter the approved maintenance plan, but does not specify that the changes are limitations. Therefore, this proposed AD would specify a revision to the Airworthiness Limitations section of the Instructions for Continued Airworthiness. This difference has been coordinated with the CTA. Costs of Compliance The following table provides the estimated costs for U.S. operators to comply with this proposed AD. This proposed AD would affect about 42 airplanes of U.S. registry. The proposed actions would take about 1 work hour per airplane, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $2,730, or $65 per airplane. Authority for This Rulemaking 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. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration

(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **Empresa Brasileira De Aeronautica S.A. (EMBRAER):** Docket No. FAA-2005-23475; Directorate Identifier 2005-NM-117-AD. Comments Due Date

(a)The FAA must receive comments on this AD action by February 3, 2005 Affected ADs

(b)None. Applicability

(c)This AD applies to all EMBRAER Model ERJ 170-100LR, -100 STD, -100SE, and -100 SU airplanes, certificated in any category. Unsafe Condition

(d)This AD results from safety assessments of the aileron and flap/slat flight controls system, conducted after the type certification of the airplane, which showed that some dormant faults did not comply with the safety assessment criteria. We are issuing this AD to prevent failure of the aileron and flap/slat controls system, which could result in reduced controllability of the airplane. Compliance

(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Airplane Maintenance Manual

(AMM)Revisions

(f)Within 30 days after the effective date of this AD: Revise the Airworthiness Limitations section of the Instructions for Continued Airworthiness in the EMBRAER 170 AMM to include revisions to the maintenance tasks and repetitive inspections intervals, and applicable corrective actions that are approved by either the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the Departmento de Aviacao Civil (DAC), (or its delegated agent). The revisions in paragraphs (f)(1) and (f)(2) of this AD are one approved method.

(1)EMBRAER Temporary Revision

(TR)1-3 of the EMBRAER 170 Maintenance Review Board

(MRB)Report MRB-1621, dated December 27, 2004, to the EMBRAER 170 AMM that includes revised repetitive inspection intervals for MRB tasks 27-11-00-002 (Operational Check of Control-Yoke Disconnect System) and 27-11-11-001 (Operational Check of Aileron Override Unit). Where the revision requires a compliance time that is less than 700 flight hours after the effective date of this AD, do the action within 700 flight hours after the effective date of this AD. Thereafter, except as provided by paragraph

(h)of this AD, no alternative inspection intervals may be approved.

(2)The revised EMBRAER 170 AMM maintenance tasks identified in Table 1 of this AD that include new maintenance tasks and inspections related to the incorporation of a new horizontal stabilizer actuator. Thereafter, except as provided by paragraph

(h)of this AD, no alternative tasks or inspections may be approved. Table 1.—EMBRAER 170 AMM Maintenance Tasks AMM chapter Task Nos. Date Title 27-11-03 27-11-03-710-801-A, 27-11-03-720-801-A January 25, 2005 Aileron Control Cable—Adjustment/Test. 27-41-01 27-41-01-210-801-A, 27-41-01-220-801-A, 27-41-01-220-802-A January 25, 2005 Horizontal Stabilizer Trim Actuator—Inspection/Check. 27-81-01 27-81-01-710-801-A January 25, 2005 Slat Actuator—Adjustment/Test. Alternative Methods of Compliance (AMOCs) (g)(1) The Manager, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.

(2)Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office. Related Information

(h)Brazilian airworthiness directive 2005-03-02, dated April 20, 2005, also addresses the subject of this AD. Issued in Renton, Washington, on December 20, 2005. Kalene C. Yanamura, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E5-8242 Filed 1-3-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2005-23476; Directorate Identifier 2005-NM-204-AD] RIN 2120-AA64 Airworthiness Directives; Fokker Model F.28 Mark 0070 and 0100 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive

(AD)for certain Fokker Model F.28 Mark 0070 and 0100 airplanes. This proposed AD would require an inspection of the main landing gear

(MLG)main fitting for cracks, and repair if necessary. This proposed AD would also require installing a placard and revising the airplane flight manual to include procedures to prohibit the application of brakes during backward movement of the airplane. This proposed AD results from a report that an MLG main fitting failed on an airplane that was braking while moving backward. We are proposing this AD to detect and correct cracks in the MLG main fitting, which could result in reduced structural integrity of the MLG main fitting. DATES: We must receive comments on this proposed AD by February 3, 2006. ADDRESSES: Use one of the following addresses to submit comments on this proposed AD. • DOT Docket Web site: Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • Government-wide rulemaking Web site: Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • Mail: Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street SW., Nassif Building, room PL-401, Washington, DC 20590. • Fax:

(202)493-2251. • Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Contact Fokker Services B.V., P.O. Box 231, 2150 AE Nieuw-Vennep, the Netherlands, for service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone

(425)227-1137; fax

(425)227-1149. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “FAA-2005-23476; Directorate Identifier 2005-NM-204-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or you may visit *http://dms.dot.gov.* Examining the Docket You may examine the AD docket on the Internet at *http://dms.dot.gov* , or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone

(MLG)main fitting failed on a Fokker Model F.28 Mark 0100 airplane that was braking while moving backward. The MLG main fitting broke into two pieces, causing the lower part including the sliding member and the main wheels to separate from the upper main fitting part. An investigation revealed a 4.5 mm fatigue crack in the main fitting, which originated from one of the MLG filler and bleeder ports. Smaller cracks, typically 0.5 mm—1.0 mm, have also been found on other Fokker Model F.28 Mark 0100 airplanes in the area of the MLG filler and bleeder ports. This condition, if not corrected, could result in reduced structural integrity of the MLG main fitting. Relevant Service Information Messier-Dowty has issued Service Bulletin F100-32-106, dated February 18, 2005, including Appendices A through D. The service bulletin describes procedures for an eddy current inspection of the MLG main fitting for cracks, and repair if necessary. If all damage has not been removed during repair, the service bulletin specifies contacting the manufacturer. The service bulletin also specifies that flight with a crack is allowed under certain circumstances. The CAA-NL mandated the service information and issued Dutch airworthiness directive NL-2005-002, dated April 14, 2005, to ensure the continued airworthiness of these airplanes in the Netherlands. Issuance of Related Dutch Airworthiness Directive The CAA-NL has previously issued Dutch airworthiness directive 2002-115/2, dated October 8, 2004. Among other actions, that airworthiness directive specifies installing a placard and revising the airplane flight manual to include procedures to prohibit the application of brakes during backward movement of the airplane. FAA's Determination and Requirements of the Proposed AD These airplane models are manufactured in the Netherlands and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the CAA-NL has kept the FAA informed of the situation described above. We have examined the CAA-NL's findings, evaluated all pertinent information, and determined that we need to issue an AD for airplanes of this type design that are certificated for operation in the United States. Therefore, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Among the Proposed AD, Service Bulletin, and Dutch Airworthiness Directive.” This AD would also require installing a placard and revising the airplane flight manual to include procedures to prohibit the application of brakes during backward movement of the airplane. Differences Among the Proposed AD, Service Bulletin, and Dutch Airworthiness Directive Operators should note that, although the Dutch airworthiness directive 2002-115/2, dated October 8, 2004, and the Accomplishment Instructions of Fokker Service Bulletin F100-32-106, dated February 18, 2005, provide procedures for submitting a report of all findings to the manufacturer, this proposed AD would not require that action. Fokker Service Bulletin F100-32-106 specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions using a method that we or the CAA-NL (or its delegated agent) approve. In light of the type of repair that would be required to address the unsafe condition, and consistent with existing bilateral airworthiness agreements, we have determined that, for this proposed AD, a repair we or the CAA-NL approve would be acceptable for compliance with this proposed AD. Unlike the procedures described in Fokker Service Bulletin F100-32-106, this proposed AD would not permit further flight if any crack is detected in the MLG main fitting. We have determined that, because of the safety implications and consequences associated with that cracking, any cracked MLG main fitting must be repaired before further flight. Although Dutch airworthiness directive 2002-115/2, dated October 8, 2004, specifies that the AFM revision be done before further flight, this proposed AD would require that the AFM revision be done within 14 days. Revising the AFM within 14 days represents an appropriate interval of time for affected airplanes to continue to operate without compromising safety. Clarification of Concurrent Action Although Fokker Service Bulletin F100-32-106 mentions that Fokker Service Bulletin F100-32-104, Revision 2, dated October 30, 2003, must be done before that service bulletin, this proposed AD would not require accomplishing Fokker Service Bulletin F100-32-104 before Fokker Service Bulletin F100-32-106. The actions specified in Fokker Service Bulletin F100-32-104 are similar to the actions specified in Fokker Service Bulletin F100-32-106. Therefore it is necessary to accomplish only the actions in Fokker Service Bulletin F100-32-106 to address the unsafe condition. Interim Action We consider this proposed AD interim action. If final action is later identified, we may consider further rulemaking then. Costs of Compliance The following table provides the estimated costs for U.S. operators to comply with this proposed AD. Estimated Costs Action Work hours Average labor rate per hour Parts Cost per airplane Number of U.S.-registered airplanes Fleet cost Inspection 2 $65 $0 $130 11 $1,430 AFM Revision and Placard Installation 1 65 0 65 11 715 Authority for This Rulemaking 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. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration

(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **Fokker Services B.V.:** Docket No. FAA-2005-23476; Directorate Identifier 2005-NM-204-AD. Comments Due Date

(a)The FAA must receive comments on this AD action by February 3, 2006. Affected ADs

(b)None. Applicability

(c)This AD applies to Fokker Model F.28 Mark 0070 and 0100 airplanes, certificated in any category; equipped with Messier-Dowty Main Landing Gears (MLGs). Unsafe Condition

(d)This AD results from a report that an MLG main fitting failed on an airplane that was braking while moving backward. We are issuing this AD to detect and correct cracks in the MLG main fitting, which could result in reduced structural integrity of the MLG main fitting. Compliance

(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Airplane Flight Manual

(AFM)Revision and Placard Installation

(f)Within 14 days after the effective date of this AD, amend the Limitations Section of the AFM to prohibit application of brakes during backward movement of the airplane. This may be done by inserting a copy of this AD in the AFM. Note 1: When a statement to prohibit application of brakes during backward movement of the airplane has been included in the general revisions of the AFM, the general revisions may be inserted into the AFM, and the copy of this AD may be removed from the AFM.

(g)Within 14 days after the effective date of this AD, affix a placard on the pedestal, next to the parking brake handle, having the following wording: “Applicaction of Brakes During Backward Movement Is Prohibited.” Inspection and Corrective Action

(h)At the applicable time specified in paragraph (h)(1) or (h)(2) of this AD: Do an eddy current inspection of the MLG main fittings and repair before further flight as applicable, in accordance with the Accomplishment Instructions of Messier-Dowty Service Bulletin F100-32-106, dated February 18, 2005, including Appendices A through D, except as provided by paragraphs

(i)and

(j)of this AD.

(1)For airplanes on which an inspection has not been done in accordance with Messier-Dowty Service Bulletin F100-32-104, Revision 2, dated October 30, 2003: Within 3 months after the effective date of this AD.

(2)For airplanes on which an inspection has been done in accordance with Messier-Dowty Service Bulletin F100-32-104, Revision 2, dated October 30, 2003: Within 2,000 flight cycles since the last inspection done in accordance with the service bulletin or within 3 months after the effective date of this AD, whichever occurs later. Exceptions to the Service Bulletin

(i)Where Fokker Service Bulletin F100-32-106, dated February 18, 2005, including Appendices A through D, specifies contacting the manufacturer for repair: Before further flight, repair using a method approved by either the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the Civil Aviation Authority—The Netherlands (CAA-NL) (or its delegated agent).

(j)Although Fokker Service Bulletin F100-32-106, dated February 18, 2005, including Appendices A through D, specifies to submit certain information to the manufacturer, this AD does not include that requirement. Parts Installation

(k)As of the effective date of this AD, no person may install, on any airplane, a Messier-Dowty MLG, unless it has been inspected/repaired according to paragraph

(h)of this AD. Alternative Methods of Compliance (AMOCs) (l)(1) The Manager, International Branch, ANM-116, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.

(m)Dutch airworthiness directives 2002-115/2, dated October 8, 2004; and NL-2005-002, dated April 14, 2005, also address the subject of this AD. Issued in Renton, Washington, on December 27, 2005. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E5-8240 Filed 1-3-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2005-23478; Directorate Identifier 2005-NM-175-AD] RIN 2120-AA64 Airworthiness Directives; Gulfstream Aerospace LP Model Galaxy and Model Gulfstream 200 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive

(AD)for all Gulfstream Aerospace LP Model Galaxy and Model Gulfstream 200 airplanes. This proposed AD would require revising the Limitations section of the airplane flight manual

(AFM)by incorporating revised takeoff performance tables. This proposed AD results from a correction of the power setting logic and table limits in the performance model by the engine manufacturer. We are proposing this AD to ensure that the flightcrew is provided with correct information to ensure a safe takeoff at certain altitudes. DATES: We must receive comments on this proposed AD by February 3, 2006. ADDRESSES: Use one of the following addresses to submit comments on this proposed AD. • DOT Docket Web site: Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • Government-wide rulemaking Web site: Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • Mail: Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street SW., Nassif Building, room PL-401, Washington, DC 20590. • Fax:

(202)493-2251. • Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Contact Gulfstream Aerospace Corporation, P.O. Box 2206, Mail Station D-25, Savannah, Georgia 31402-2206, for service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Mike Borfitz, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone

(425)227-2677; fax

(425)227-1149. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “FAA-2005-23478; Directorate Identifier 2005-NM-175-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or you may visit *http://dms.dot.gov* . Examining the Docket You may examine the AD docket on the Internet at *http://dms.dot.gov* , or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone

(APR)N1 values. This applies to elevations of 6,000 feet and higher when outside air temperature

(OAT)is below standard day conditions, as defined by the Instrumentation, Systems, and Automations Society (ISA). This correction is intended to ensure that the flightcrew is provided with correct information to ensure a safe takeoff at certain altitudes. Relevant Service Information Gulfstream Aerospace LP has issued Temporary Revision

(TR)7, dated August 18, 2003, to the Gulfstream 200 Airplane Flight Manual. The TR describes procedures for incorporating revised takeoff performance tables to prevent reduced balanced field length and single engine climb performance. Accomplishing the actions specified in the TR is intended to adequately address the unsafe condition. The CAAI mandated the service information and issued Israeli airworthiness directive 72-03-05-09, dated September 22, 2003, to ensure the continued airworthiness of these airplanes in Israel. FAA's Determination and Requirements of the Proposed AD These airplane models are manufactured in Israel and are type certificated for operation in the United States under the provisions of § 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the CAAI has kept the FAA informed of the situation described above. We have examined the CAAI's findings, evaluated all pertinent information, and determined that we need to issue an AD for airplanes of this type design that are certificated for operation in the United States. Therefore, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously. Costs of Compliance This proposed AD would affect about 82 airplanes of U.S. registry. The proposed AFM revision would take about 1 work hour per airplane, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $5,330, or $65 per airplane. Authority for This Rulemaking 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. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration

(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **Gulfstream Aerospace LP (Formerly Israel Aircraft Industries, Ltd.)** : Docket No. FAA-2005-23478; Directorate Identifier 2005-NM-175-AD. Comments Due Date

(a)The FAA must receive comments on this AD action by February 3, 2006. Affected ADs

(b)None. Applicability

(c)This AD applies to all Gulfstream Aerospace LP Model Galaxy and Model Gulfstream 200 airplanes, certificated in any category. Unsafe Condition

(d)This AD results from an engine performance modification done by the engine manufacturer. We are issuing this AD to ensure that the flightcrew is provided with correct information to ensure a safe takeoff at certain altitudes. Compliance

(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Airplane Flight Manual

(AFM)Revision

(f)Within 50 flight hours after the effective date of this AD: Revise the Limitations section of the Gulfstream 200 AFM, to include the information in Gulfstream Temporary Revision

(TR)7, dated August 18, 2003, as specified in the TR. The TR includes procedures for incorporating revised takeoff performance tables. Thereafter, operate the airplane according to the limitations and procedures in the TR. This may be done by inserting a copy of Gulfstream TR 7 in the AFM. When the TR has been included in the general revisions of the AFM, the general revisions may be inserted in the AFM, provided the relevant information in the general revision is identical to that in Gulfstream TR 7. Alternative Methods of Compliance (AMOCs) (g)(1) The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.

(h)Israeli airworthiness directive 72-03-05-09, dated September 22, 2003, also addresses the subject of this AD. Issued in Renton, Washington, on December 20, 2005. Kalene C. Yanamura, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E5-8241 Filed 1-3-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2005-23477; Directorate Identifier 2005-NM-181-AD] RIN 2120-AA64 Airworthiness Directives; BAE Systems (Operations) Limited Model BAe 146 and Model Avro 146-RJ Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive

(AD)for certain BAE Systems (Operations) Limited Model BAe 146 and Model Avro 146-RJ airplanes. This proposed AD would require a one-time detailed inspection for corrosion of the hinge bracket assembly of the left and right main landing gear

(MLG)doors, and corrective action if necessary. This proposed AD results from in-service reports of hinge bracket failures on the MLG doors. We are proposing this AD to prevent failure of the hinge bracket on the MLG door, which could result in separation of the door, consequent structural damage to the airplane, and possible injury to people on the ground. DATES: We must receive comments on this proposed AD by February 3, 2006. ADDRESSES: Use one of the following addresses to submit comments on this proposed AD. • DOT Docket Web site: Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • Government-wide rulemaking Web site: Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • Mail: Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street SW., Nassif Building, room PL-401, Washington, DC 20590. • Fax:

(202)493-2251. • Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Contact British Aerospace Regional Aircraft American Support, 13850 Mclearen Road, Herndon, Virginia 20171, for service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Dan Rodina, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone

(425)227-2125; fax

(425)227-1149. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “FAA-2005-23477; Directorate Identifier 2005-NM-181-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or you may visit *http://dms.dot.gov* . Examining the Docket You may examine the AD docket on the Internet at *http://dms.dot.gov* , or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone

(MLG)doors. The failures were caused by stress corrosion of the bearing housing of the hinge bracket, which was accelerated by the subsequent expansion of existing corrosion. This condition, if not corrected, could result in separation of the door, consequent structural damage, and possible injury to people on the ground. Relevant Service Information BAE Systems (Operations) Limited has issued Inspection Service Bulletin ISB.52-113, Revision 1, dated February 11, 2005. The ISB describes procedures for a one-time detailed inspection for corrosion of the hinge bracket assembly of the left and right MLG doors, and corrective action if necessary. The corrective action for corrosion involves replacement of the hinge bracket assembly with a new assembly and application of protective treatment; the corrective action for light corrosion involves removing the corrosion and applying protective treatment. If no corrosion is found, the service bulletin describes procedures for applying protective treatment. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The CAA mandated the service information and issued British airworthiness directive G-2005-0017, dated July 6, 2005, to ensure the continued airworthiness of these airplanes in the United Kingdom. FAA's Determination and Requirements of the Proposed AD These airplane models are manufactured in the United Kingdom and are type certificated for operation in the United States under the provisions of § 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the CAA has kept the FAA informed of the situation described above. We have examined the CAA's findings, evaluated all pertinent information, and determined that we need to issue an AD for airplanes of this type design that are certificated for operation in the United States. Therefore, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously. Costs of Compliance This proposed AD would affect about 35 airplanes of U.S. registry. The proposed actions would take about 4 work hours per airplane, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of the proposed actions for U.S. operators is $9,100, or $260 per airplane. Authority for This Rulemaking 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. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration

(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **BAE Systems (Operations) Limited (Formerly British Aerospace Regional Aircraft)** : Docket No. FAA-2005-23477; Directorate Identifier 2005-NM-181-AD. Comments Due Date

(a)The FAA must receive comments on this AD action by February 3, 2006. Affected ADs

(b)None. Applicability

(c)This AD applies to BAE Systems (Operations) Limited Model BAe 146-100A, -200A, and -300A series airplanes, and Model Avro 146-RJ70A, 146-RJ85A, and 146-RJ100A airplanes; certificated in any category; as identified in BAE Systems (Operations) Limited Inspection Service Bulletin ISB.52-113, Revision 1, dated February 11, 2005. Unsafe Condition

(d)This AD results from in-service reports of hinge bracket failures on the main landing gear

(MLG)doors. We are issuing this AD to prevent failure of the hinge bracket on the MLG door, which could result in separation of the door, consequent structural damage to the airplane, and possible injury to people on the ground. Compliance

(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Inspection/Corrective Action

(f)At the applicable time specified in paragraph (f)(1) or (f)(2) of this AD: Perform a one-time detailed inspection for corrosion of the hinge bracket assembly of the left and right MLG doors by doing all the applicable actions in accordance with the Accomplishment Instructions of BAE Systems (Operations) Limited Inspection Service Bulletin ISB.52-113, Revision 1, dated February 11, 2005. Perform any applicable corrective action before further flight in accordance with the service bulletin. If no corrosion is found, before further flight, apply protective treatment in accordance with the service bulletin.

(1)For airplanes on which the date of issuance of the original standard airworthiness certificate or the date of issuance of the original export certificate of airworthiness is on or before February 28, 1991: Within 192 months since the date of issuance of the original standard airworthiness certificate or the date of issuance of the original export certificate of airworthiness, or within 12 months after the effective date of this AD, whichever is later.

(2)For airplanes on which the date of issuance of the original standard airworthiness certificate or the date of issuance of the original export certificate of airworthiness is after February 28, 1991: Within 24 months after the effective date of this AD. Note 1: For the purposes of this AD, a detailed inspection is: “An intensive examination of a specific item, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at an intensity deemed appropriate. Inspection aids such as mirror, magnifying lenses, etc., may be necessary. Surface cleaning and elaborate procedures may be required.” Inspections Accomplished According to Previous Issue of Service Bulletin

(g)Inspections accomplished before the effective date of this AD according to BAE Systems (Operations) Limited Inspection Service Bulletin ISB.52-113, dated February 2, 2001, are considered acceptable for compliance with the corresponding action specified in this AD. Parts Installation

(h)As of the effective date of this AD, no person may install, on any airplane, a hinge bracket assembly of the left and right MLG doors, unless it has been inspected (and any corrective actions done) according to BAE Systems (Operations) Limited Inspection Service Bulletin ISB.52-113, Revision 1, dated February 11, 2005. No Reporting Required

(i)Although BAE Systems (Operations) Limited Inspection Service Bulletin ISB.52-113, Revision 1, dated February 11, 2005, referenced in this AD, specifies to submit certain information to the manufacturer, this AD does not include that requirement. Alternative Methods of Compliance (AMOCs) (j)(1) The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.

(k)British airworthiness directive G-2005-0017, dated July 6, 2005, also addresses the subject of this AD. Issued in Renton, Washington, on December 20, 2005. Kalene C. Yanamura, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E5-8243 Filed 1-3-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. 2000-NM-360-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 747-400, 777-200, and 777-300 Series Airplanes AGENCY: Federal Aviation Administration, DOT. ACTION: Supplemental notice of proposed rulemaking; reopening of comment period. SUMMARY: This document revises an earlier proposed airworthiness directive (AD), applicable to Boeing Model 747-400, 777-200, and 777-300 series airplanes, that would have required an inspection of the flight deck humidifier to determine certain part numbers. That proposed AD also would have required, for certain airplanes, replacing the cell stack of the flight deck humidifier with a supplier-tested cell stack, or replacing the cell stack with a blanking plate and subsequently deactivating the flight deck humidifier, if necessary. For other airplanes, that proposed AD would have required replacing the cell stack with a supplier-tested cell stack, or replacing the cell stack with a blanking plate and subsequently deactivating the humidifier system, if necessary. The proposed AD also would have allowed blanking plates to be replaced with cell stacks. This new action revises the proposed rule by adding airplanes to the applicability, requiring an inspection of the flight deck humidifier to determine certain part numbers on certain airplanes, and requiring replacement of the cell stack on certain other airplanes. The actions specified by this new proposed AD are intended to prevent an increased pressure drop across the humidifier and consequent reduced airflow to the flight deck, which could result in the inability to clear any smoke that might appear in the flight deck. This action is intended to address the identified unsafe condition. DATES: Comments must be received by January 30, 2006. ADDRESSES: Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-360-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to

(425)227-1232. Comments may also be sent via the Internet using the following address: *9-anm-nprmcomment@faa.gov* . Comments sent via fax or the Internet must contain “Docket No. 2000-NM-360-AD” in the subject line and need not be submitted in triplicate. Comments sent via the Internet as attached electronic files must be formatted in Microsoft Word 97 or 2000 or ASCII text. The service information referenced in the proposed rule may be obtained from Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington. FOR FURTHER INFORMATION CONTACT: Jeffrey S. Palmer, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM-150S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone

(425)917-6481; fax

(425)917-6590. SUPPLEMENTARY INFORMATION: Comments Invited Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received. Submit comments using the following format: • Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues. • For each issue, state what specific change to the proposed AD is being requested. • Include justification ( *e.g.* , reasons or data) for each request. Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket. Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-360-AD.” The postcard will be date stamped and returned to the commenter. Availability of NPRMs Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-360-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Discussion A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add an airworthiness directive (AD), applicable to Boeing Model 747-400, 777-200, and 777-300 series airplanes, equipped with a Hamilton Sundstrand flight deck humidifier, was published as a supplemental notice of proposed rulemaking (referred to hereafter as the first SNPRM) in the **Federal Register** on January 6, 2005 (70 FR 1211). The first SNPRM would have required an inspection of the flight deck humidifier to determine certain part numbers. The first SNPRM also would have required, for certain airplanes, replacing the cell stack of the flight deck humidifier with a supplier-tested cell stack, or replacing the cell stack with an end plate and subsequent deactivation of the flight deck humidifier, if necessary. For other airplanes, the first SNPRM would have required replacing the cell stack with a supplier-tested cell stack, or replacing the cell stack with a blanking plate and subsequent deactivation of the humidifier system, if necessary. The first SNPRM also would have allowed end plates or blanking plates to be replaced with cell stacks. The first SNPRM was prompted by reports of sagging cell stack membranes of the flight deck humidifiers. That condition, if not corrected, could result in an increased pressure drop across the humidifier and consequent reduced airflow to the flight deck, which could result in the inability to clear any smoke that might appear in the flight deck. Actions Since Issuance of First SNPRM Since the issuance of the first SNPRM, Boeing has issued Boeing Alert Service Bulletin 747-21A2414, Revision 2, dated July 7, 2005 (Revision 1, dated October 26, 2000, was referenced as an applicable source of service information for doing the actions in that SNPRM); and Boeing Alert Service Bulletin 777-21A0048, Revision 2, dated July 14, 2005 (Revision 1, dated September 7, 2000, was referenced as an applicable source of service information for doing the actions in the first SNPRM). Revision 2 of the alert service bulletins contains essentially the same procedures for the replacement of certain cell stacks of the flight deck humidifier. However, Revision 2 of the alert service bulletins adds airplanes to the effectivity. For those airplanes, Revision 2 of the alert service bulletin adds a procedure to inspect for a certain flight deck humidifier and inspect for a certain cell stack if necessary. Revision 2 of the alert service bulletins also specifies on which airplanes the replacement should be accomplished. We have made the following changes to the first SNPRM: • We have revised the applicability of this second SNPRM to reference Revision 2 of the alert service bulletins. • We have referenced Revision 2 of the alert service bulletins as the appropriate source of service information for accomplishing the cell stack replacements. • We have also revised the format of this second SNPRM to clarify that a new or supplier-tested cell stack may be installed on flight deck humidifiers that have a blanking plate; paragraphs

(a)and

(d)of this second SNPRM (cited as paragraphs

(b)and

(e)of the first SNPRM) include the information on blanking plate replacement that was specified in paragraphs (b)(3) and (e)(3) of the first SNPRM. In addition, for the blanking plate replacement specified in paragraph

(a)of this second SNPRM, we specify that the replacement be done in accordance with Hamilton Sundstrand Service Bulletin 821486-21-01, dated March 15, 2000, and that if the flight deck humidifier is activated after the replacement, the humidifier must be activated in accordance with Boeing Service Bulletin 747-21-2405, Revision 4, dated July 29, 1999. • We have revised the format of this second SNPRM to require that certain airplanes do the inspections for part numbers and then replace the cell stack if necessary and that certain other airplanes replace the cell stack. Revision 2 of the alert service bulletins specifies on which airplanes (identified according to groups in the alert service bulletins) to do the inspection and then the replacement if necessary, and on which airplanes to do the replacement. • We have revised the cost estimate of this second SNPRM. Comments We have also given due consideration to the comments received in response to the first SNPRM. Request To Revise Number of Affected Airplanes One commenter, the manufacturer, requests that the number of airplanes that could be fitted with the potentially defective cell stack be revised from 114 airplanes, as stated in the “Request to Withdraw the Proposed AD” section of the first SNPRM, to 176 airplanes. The commenter states that 176 humidifiers have been delivered that could have the potentially defective cell stacks. We agree with the commenter that the total number of airplanes that could be fitted with the potentially defective cell stack is 176. We have revised the number in the Cost Impact section of this second SNPRM. Request To Allow Additional Records Review The same commenter requests that we add an additional records review to allow operators to show compliance with the intent of the first SNPRM. The commenter states that if an airplane or retrofit kit was delivered after December 16, 1999, and the record review shows that the humidifier or cell stack was not replaced since, no inspection or replacement of the humidifier is needed. The commenter notes that December 16, 1999 is the delivery date of the first airplane that was delivered with an acceptable cell stack that was screened in production. The commenter contends that all humidifier deliveries would thereafter contain a cell stack that is not susceptible to the unsafe condition. We partially agree with the commenter. We acknowledge that airplanes delivered after December 16, 1999, would not require that the humidifier be inspected or replaced if there has not been any maintenance on the humidifier and the appropriate part markings could be determined. However, we have not revised the requirements for the records review specified in the first SNPRM since this review would include airplanes delivered with a known good cell stack. As specified in paragraphs

(c)and

(f)of this second SNPRM, a records review would be allowed in lieu of the inspection. Request To Revise Nomenclature The same commenter requests that the term “end plate” in the first SNPRM be revised to “blanking plate.” The commenter states that an end plate is actually a part that exists in the cell stack assembly, while a blanking plate is a part that can be installed in lieu of the cell stack. The commenter recommends that the first SNPRM describe part number (P/N) 1001157-1 as a blanking plate. We agree with the commenter. Where the first SNPRM specifies an end plate, we have revised this second SNPRM to specify a blanking plate. Clarification of P/Ns Boeing Alert Service Bulletin 747-21A2414, Revision 2, dated July 7, 2005, specifies the cell stack P/N as 103111-2 in paragraph 3. of “Group 2-3: Part 3—Cell Stack Part Number Inspection” of the Accomplishment Instructions of the service bulletin. The correct P/N is 1003111-2. Boeing Alert Service Bulletin 777-21A0048, Revision 2, dated July 14, 2005, specifies the cell stack P/N as 10311-1 in paragraph 2.C. of “Parts Necessary For Each Airplane” and 2.D. of “Parts Necessary to Change Spares” of the service bulletin. The correct P/N is 1003111-1. Explanation of Change Made to This AD We have revised paragraph (d)(1) of this second SNPRM to clarify the delegation authority for Authorized Representatives for the Boeing Commercial Airplanes Delegation Option Authorization. Clarification of Alternative Method of Compliance

(AMOC)Paragraph We have revised this second SNPRM to clarify the appropriate procedure for notifying the principal inspector before using any approved AMOC on any airplane to which the AMOC applies. Conclusion Since this change expands the scope of this second SNPRM, the FAA has determined that it is necessary to reopen the comment period to provide additional opportunity for public comment. Cost Impact There are approximately 176 airplanes of the affected design in the worldwide fleet. The FAA estimates that 29 airplanes of U.S. registry would be affected by this second SNPRM. The cost per airplane would range between $390 and $6,248 per airplane, depending on the actions chosen by the operator. The fleet cost estimate would not exceed $181,192. Estimated Costs Model/series Action Work hours Hourly rate Parts cost Cost per airplane 747-400, 777-200, 777-300 Inspect flight deck humidifier for part number and inspect flight deck humidifier cell stack for part number 1 $65 $0 $65 747-400 Replace cell stack with new or supplier-tested cell stack 3 65 5,100 5,295 747-400 Replace cell stack with blanking plate and deactivate humidifier 5 65 0 325 777-200, 777-300 Replace cell stack with blanking plate 3 65 0 195 777-200, 777-300 Replace cell stack with new or supplier-tested cell stack 3 65 6,053 6,248 777-200, 777-300 Replace blanking plate with supplier-tested cell stack 1 65 6,053 6,118 The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions. Authority for This Rulemaking 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. Regulatory Impact The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132. For the reasons discussed above, I certify that this proposed regulation

(1)is not a “significant regulatory action” under Executive Order 12866;

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

(3)if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES . List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. Section 39.13 is amended by adding the following new airworthiness directive: **Boeing:** Docket 2000-NM-360-AD. *Applicability:* Model 747-400, 777-200, and 777-300 series airplanes, certificated in any category; as identified in Boeing Alert Service Bulletin 747-21A2414, Revision 2, dated July 7, 2005; and Boeing Alert Service Bulletin 777-21A0048, Revision 2, dated July 14, 2005. *Compliance:* Required as indicated, unless accomplished previously. To prevent an increased pressure drop across the humidifier and consequent reduced airflow to the flight deck, which could result in the inability to clear any smoke that might appear in the flight deck, accomplish the following: Cell Stack Replacement: Model 747-400 Series Airplanes

(a)For Model 747-400 series airplanes identified as Group 1 in Boeing Alert Service Bulletin 747-21A2414, Revision 2, dated July 7, 2005: Within 90 days after the effective date of this AD, do the replacement specified in paragraph (a)(1) or (a)(2) of this AD. For flight deck humidifiers with a blanking plate: If the blanking plate is removed and a new or supplier-tested cell stack is installed, the replacement must be done in accordance with the Accomplishment Instructions of Hamilton Sundstrand Service Bulletins 821486-21-01, dated March 15, 2000; and after the replacement, the flight deck humidifier may be activated in accordance with the Accomplishment Instructions of Boeing Service Bulletin 747-21-2405, Revision 4, dated July 29, 1999.

(1)Replace the cell stack of the flight deck humidifier with a supplier-tested cell stack, in accordance with Part 1 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-21A2414, Revision 2, dated July 7, 2005.

(2)Replace the cell stack of the flight deck humidifier with a blanking plate and, before further flight, deactivate the flight deck humidifier, in accordance with Part 2 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-21A2414, Revision 2, dated July 7, 2005. Note 1: Boeing Alert Service Bulletin 747-21A2414, Revision 2, dated July 7, 2005, refers to Boeing Service Bulletin 747-21-2405, Revision 4, dated July 29, 1999, as an additional source of service information for deactivating the humidifier. Note 2: Boeing Alert Service Bulletin 747-21A2414, Revision 2, dated July 7, 2005, refers to Hamilton Sundstrand Service Bulletins 821486-21-01, dated March 15, 2000, as an additional source of service information for the cell stack replacements.

(b)Replacement of the cell stack before the effective date of this AD in accordance with Boeing Alert Service Bulletin 747-21A2414, dated April 13, 2000; or Revision 1, dated October 26, 2000; is acceptable for compliance with the applicable requirements of paragraphs (a)(1) and (a)(2) of this AD. Inspections/Records Review: Model 747-400 Series Airplanes

(c)For Model 747-400 series airplanes identified as Groups 2 and 3 in Boeing Alert Service Bulletin 747-21A2414, Revision 2, dated July 7, 2005: Within 90 days after the effective date of this AD, inspect the flight deck humidifier to determine whether part number (P/N) 821486-1 is installed, in accordance with Part 3 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-21A2414, Revision 2, dated July 7, 2005. Instead of inspecting the flight deck humidifier, a review of airplane maintenance records is acceptable if the P/N of the flight deck humidifier can be positively determined from that review.

(1)If a P/N other than P/N 821486-1 is installed, no further action is required by this paragraph.

(2)If P/N 821486-1 is installed, inspect the flight deck humidifier cell stack to determine whether P/N 821482-1 is installed and “DEV 13433” is not marked next to the cell stack part number, in accordance with Part 3 of the Accomplishment Instructions of the alert service bulletin. Instead of inspecting the flight deck humidifier cell stack, a review of airplane maintenance records is acceptable if the P/N, including whether “DEV 13433” is marked next to the P/N, of the flight deck humidifier cell stack can be positively determined from that review.

(i)If the cell stack has P/N 821482-2 or 1003111-2, or if “DEV 13433” is marked next to P/N 821482-1, no further action is required by this paragraph.

(ii)If the cell stack has P/N 821482-1 and does not have “DEV 13433” marked next to the cell stack part number: Before further flight, do the replacement specified in paragraph

(a)of this AD. Cell Stack Replacement: Model 777-200 and -300 Series Airplanes

(d)For Model 777-200 and 777-300 series airplanes identified as Groups 1 through 5 in Boeing Alert Service Bulletin 777-21A0048, Revision 2, dated July 14, 2005: Within 90 days after the effective date of this AD, do the replacement specified in paragraph (d)(1) or (d)(2) of this AD. For flight deck humidifiers with a blanking plate: If a blanking plate is removed and a new or supplier-tested cell stack installed, the cell stack installation must be done in accordance with Part 3 of the Accomplishment Instructions of Boeing Alert Service Bulletin 777-21A0048, Revision 2, dated July 14, 2005; and after the installation, the humidifier system may be activated in accordance with Accomplishment Instructions of Boeing Service Bulletin 777-21-0035, Revision 1, dated October 19, 2000.

(1)Replace the cell stack with a blanking plate, in accordance with Part 1 of the Accomplishment Instructions of Boeing Alert Service Bulletin 777-21A0048, Revision 2, dated July 14, 2005; and, before further flight, deactivate the humidifier system in accordance with a method approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA, or in accordance with data meeting the certification basis of the airplane approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization who has been authorized by the Manager, Seattle ACO, to make those findings. For a deactivation method to be approved, the deactivation must meet the certification basis of the airplane, and the approval must specifically reference this AD.

(2)Replace the cell stack with a supplier-tested cell stack, in accordance with Part 2 of the Accomplishment Instructions of Boeing Alert Service Bulletin 777-21A0048, Revision 2, dated July 14, 2005. Note 3: Boeing Alert Service Bulletin 777-21A0048, Revision 2, dated July 14, 2005, refers to Hamilton Sundstrand Service Bulletin 816086-21-01, dated March 15, 2000, as an additional source of service information for the cell stack replacement.

(e)Replacement of the cell stack before the effective date of this AD in accordance with Boeing Service Bulletin 777-21A0048, Revision 1, dated September 7, 2000, is acceptable for compliance with the applicable requirements of paragraphs (d)(1) and (d)(2) of this AD. Inspections/Records Review: Model 777-200 and -300 Series Airplanes

(f)For Model 777-200 and 777-300 series airplanes identified as Groups 6 and 7 in Boeing Alert Service Bulletin 777-21A0048, Revision 2, dated July 14, 2005: Within 90 days after the effective date of this AD, inspect the flight deck humidifier to determine if it is P/N 816086-1, in accordance with Part 4 of the Accomplishment Instructions of Boeing Alert Service Bulletin 777-21A0048, Revision 2, dated July 14, 2005. Instead of inspecting the flight deck humidifier, a review of airplane maintenance records is acceptable if the part number (P/N) of the flight deck humidifier can be positively determined from that review.

(1)If a P/N other than P/N 816086-1 is installed, no further action is required by this paragraph.

(2)If P/N 816086-1 is installed, inspect the flight deck humidifier cell stack to determine whether P/N 822976-2 is installed and “DEV 13433” is not marked next to the cell stack part number, in accordance with Part 4 of the Accomplishment Instruction of the alert service bulletin. Instead of inspecting the flight deck humidifier cell stack, a review of airplane maintenance records is acceptable if the P/N, including whether “DEV 13433” is marked next to the P/N, of the flight deck humidifier cell stack can be positively determined from that review.

(i)If the cell stack has P/N 822976-3 or 1003111-1, or if “DEV 13433” is marked next to P/N 822976-2, no further action is required by this paragraph.

(ii)If the cell stack has P/N 822976-2 and does not have “DEV 13433” marked next to the cell stack part number, before further flight, do the replacement specified in paragraph

(d)of this AD. Parts Installation

(g)On Model 747-400 series airplanes: As of the effective date of this AD, no person may install a flight deck humidifier cell stack having P/N 821482-1, unless “DEV 13433” is also marked next to the cell stack part number.

(h)On Model 777-200 and 777-300 series airplanes: As of the effective date of this AD, no person may install a flight deck humidifier cell stack having P/N 822976-2, unless “DEV 13433” is also marked next to the cell stack part number. Alternative Methods of Compliance

(1)In accordance with 14 CFR 39.19, the Manager, Seattle ACO, is authorized to approve alternative methods of compliance for this AD.

(2)Before using any AMOC approved in accordance with 14 CFR 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office. Issued in Renton, Washington, on December 27, 2005. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E5-8244 Filed 1-3-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Parts 35 and 370 [Docket No. RM05-35-000] Standard of Review for Modifications to Jurisdictional Agreements December 27, 2005. AGENCY: Federal Energy Regulatory Commission, DOE. ACTION: Notice of proposed rulemaking. SUMMARY: The Federal Energy Regulatory Commission (Commission) is issuing a notice of proposed rulemaking to propose a general rule regarding the standard of review applicable to proposed modifications to Commission-jurisdictional agreements under the Federal Power Act and Natural Gas Act. The intent of the proposed rulemaking is to promote the sanctity of contracts, recognize the importance of providing certainty and stability in competitive electric energy markets, and provide adequate protection of energy customers. The Commission is inviting comments on the notice of proposed rulemaking. DATES: Comments are due February 3, 2006. ADDRESSES: Comments may be filed electronically via the eFiling link on the Commission's Web site at *http://www.ferc.gov.* Commenters unable to file comments electronically must send an original and fourteen

(14)copies of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street, NE., Washington, DC 20426. Refer to the Comment Procedures section of the preamble for additional information on how to file comments. FOR FURTHER INFORMATION CONTACT: Hadas Kozlowski, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,

(202)502-8030. Shaheda Sultan, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,

(202)502-8845. Richard Howe, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,

(202)502-8289. SUPPLEMENTARY INFORMATION: I. Introduction 1. The Commission is proposing to amend its regulations to provide a general rule regarding the standard of review that must be met to justify proposed modifications to Commission-jurisdictional agreements under the Federal Power Act

(FPA)and the Natural Gas Act

(NGA)that are not agreed to by the signatories (or their successors). Specifically, the Commission proposes to repeal its regulation 1 at 18 CFR 35.1(d). 1 We also terminate our proposed policy statement in Docket No. PL02-7-000. 2. In its place, the Commission proposes a regulation which provides that, in the absence of prescribed contractual language enabling the Commission to review proposed modification to agreements that are not agreed to by the signatories (or their successors) under a just and reasonable standard, the Commission will review such agreements under a public interest standard, in accordance with the Mobile-Sierra doctrine. 2 However, this regulation will not apply to transmission service agreements executed under an open access transmission tariff as provided for under Order No. 888 3 and agreements for the transportation of natural gas (to the extent that they are executed pursuant to the standard form of service agreements in pipeline tariffs), as these forms of service agreement already mandate the use of the just and reasonable standard of review. 2 *See United Gas Pipe Line Co.* v. *Mobile Gas Serv. Corp.,* 350 U.S. 332 (1956); *FPC* v. *Sierra Pacific Power Co.,* 350 U.S. 348

(1956)( *Mobile-Sierra* ). 3 *Promoting Wholesale Competition Through Open Access Non-discriminatory Transmission Services by Public Utilities and Recovery of Stranded Costs by Public Utilities and Transmitting Utilities,* Order No. 888, FERC Stats. & Regs. ¶ 31,036 (1996), *order on reh'g,* Order No. 888-A, FERC Stats. & Regs. ¶ 31,048 (1997), *order on reh'g,* Order No. 888-B, 81 FERC ¶ 61,248 (1997), *order on reh'g,* Order No. 888-C, 82 FERC ¶ 61,046 (1998), *aff'd in relevant part sub nom. Transmission Access Policy Study Group* v. *FERC,* 225 F.3d 667 (D.C. Cir. 2000), *aff'd sub nom. New York* v. *FERC,* 535 U.S. 1 (2002). 3. This regulation will be applied on a prospective basis, *i.e.* , it will become effective for all Commission-jurisdictional contracts under the FPA or the NGA executed 30 days or more after the final rule is published in the **Federal Register** . II. Background 4. The FPA and the NGA require that rates, terms, and conditions of service must be “just and reasonable” and not unduly discriminatory or preferential. 4 The seller can propose rates, terms, and conditions of service and the Commission can approve them if it finds they meet the just and reasonable standard. 5 The Commission can also on its own motion or on the filing of a complaint of a third party investigate existing rates, terms, and conditions of jurisdictional service and alter them prospectively, if it finds that such rates are no longer just and reasonable. 6 The FPA and the NGA also provide that contracts between individual parties can be used to set rates, terms, and conditions. 7 In such contracts, sellers may agree to voluntarily restrict some or all of their freedom to change the contract rates, terms, and conditions, and buyers may agree to restrict their right to request the Commission to change the rate, terms, and conditions. Additionally, sometimes the parties to the contract may attempt to restrict not only themselves but also the Commission from changing the contract provisions under the “just and reasonable” standard. In some cases, the seller and buyer have contracted for a particular rate, 8 and not expressly reserved their rights to propose contractual changes, the contract has been filed with the Commission, and the Commission has permitted the rate to become effective. In these cases, the courts have differed on the applicable standard of review when a seller seeks, over the objections of the buyer, to file a new rate (under section 205 of the FPA or section 4 of the NGA), or the buyer or the Commission seeks (under section 206 of the FPA or section 5 of the NGA) to change the existing contract rate. In particular, courts have differed on whether the “just and reasonable” or the “public interest” standard of review should apply in that situation. 9 Although not clearly defined, 10 the “public interest” standard of review has been held to be higher or stricter than the “just and reasonable” standard of review. 11 4 16 U.S.C. 824d; 15 U.S.C. 717c. 5 *Id.* 6 16 U.S.C. 824e; 15 U.S.C. 717d. 7 *See, e.g.* , 16 U.S.C. 824d(d) and 824e(a); 15 U.S.C. 717c(d) and 717d(a). 8 Although this proposed rulemaking applies to rates, terms, and conditions, of both electric and gas contracts, most of the cases have involved rates. 9 *See Boston Edison Co.* v. *FERC,* 233 F.3d 60 (1st Cir. 2000) ( *Boston Edison* ) ( *citing Mobile-Sierra* ). 10 *See Northeast Utilities Service Co.,* 55 F.3d 686, 690 (1st Cir. 1995) (describing the *Mobile-Sierra* standard of review: “[N]owhere in the Supreme Court opinion is the term ‘public interest' defined. Indeed, the Court seems to assume that the Commission decides what circumstances give rise to the public interest”). 11 *See Papago Tribal Utility Authority* v. *FERC* , 723 F.2d 950, 954 (D.C. Cir. 1983). 5. In 1958, in *United Gas Pipeline Co.* v. *Memphis Light, Gas and Water Division,* 12 the Supreme Court held that the *Mobile-Sierra* public interest standard of review does not apply to service agreements entered into pursuant to the “tariff-and-service agreement” system used by natural gas pipelines. That system is currently implemented through section 154.110 of the Commission's regulations, 13 which requires interstate pipelines to include in their tariffs *pro forma* service agreements. Since *Memphis* , the Commission and the industry as a whole have consistently interpreted pipeline forms of service agreements as permitting changes in pipelines' tariff and service agreements to be made pursuant to the just and reasonable standard of review, rather than the public interest standard of review. This is true whether the change is initiated by the pipeline under section 4 of the NGA or by a shipper or the Commission under section 5. 14 12 358 U.S. 103

(1958)( *Memphis* ). 13 18 CFR 154.110. 14 There are two primary situations where the form of service agreement set forth in the pipeline's tariff does not apply. First, when a project is being certificated, the pipeline generally negotiates precedent agreements with the shippers (and there is no form of service agreement for precedent agreements). The second situation is the negotiation of rate case settlements. 6. In the electric industry, Order No. 888 adopted a “tariff and service agreement” contracting system for open access electric transmission service very similar to the system used by interstate pipelines for their open access transportation service. Thus, as is the case with natural gas pipeline service agreements, when an electric transmission provider negotiates a service agreement with a customer, the issue of what standard of review the Commission will apply when acting on proposed tariff or contract modifications is generally not a matter for negotiation between the parties. The just and reasonable standard of review must apply, since it is provided for in the OATT and in the mandatory form of service agreement in the Transmission Provider's tariff. 15 15 However, also similar to the situation with natural gas pipelines, transmission providers may enter into rate case settlements with their customers that are not covered by the form of service agreement, and such settlement agreements may contain provisions limiting the parties' section 205 and 206 rights in particular ways. III. Discussion 7. A great deal of time and expense is incurred, and much uncertainty is engendered, when the parties involved in contract disputes and the Commission attempt to resolve the issues of whether the parties intended to invoke a public interest standard of review, and whether this standard binds only one party, both parties, third parties, and/or the Commission. 8. Moreover, courts have been divided as to whether to apply the public interest or the just and reasonable standard in the face of contractual silence. As the (First Circuit) court said in *Boston Edison,* “cases even within the D.C. Circuit * * * do not form a completely consistent pattern.” 16 The *Boston Edison* court also stated that these issues would remain in a state of confusion until the Commission “squarely confronted the underlying issues,” and if the Commission “wanted to eliminate much of the existing uncertainly regarding the parties” intent, it might prescribe prospectively the terms that parties would have to use to invoke Mobile-Sierra protection.” 17 16 *Boston Edison* , 233 F.3d at 67. 17 *Boston Edison* , 233 F.3d at 68. 9. Upon review of the case law, we conclude that the weight of precedent supports the conclusion that the public interest standard applies in the case of contractual silence. *See, e.g., Texaco Inc.* v. *FERC,* 148 F.3d 1091, 1096 (D.C. Cir. 1998) (“absent contractual language ‘susceptible to the construction that the rate may be altered while the contract[] subsists,' the Mobile-Sierra doctrine applies,” *quoting Appalachian Power Co.,* 529 F.2d 342, 348 (D.C. Cir. 1976)). 18 Moreover, we note that, in the initial cases, the Supreme Court interpreted silence as requiring the public interest standard of review. *See Sierra,* 350 U.S. at 355 (“while it may be that the Commission may not normally *impose* upon a public utility a rate which would produce less than a fair return, it does not follow that the public utility may not itself agree by contract to a rate affording less than a fair return or that, if it does so, it is entitled to be relieved of its improvident bargain”). 18 *But see Union Pac. Fuels, Inc.* v. *FERC,* 327 U.S. App. D.C. 74, 129 F.3d 157, 161-162 (D.C. Cir. 1997). 10. Thus, rather than prescribe specific terms for invoking *Mobile-Sierra,* as suggested by Boston Edison, the Commission believes that, in keeping with precedent, recognizing the importance of providing certainty and stability in energy markets, and to promote the sanctity of contracts, it is preferable to interpret contractual silence on this issue as the intent to invoke a *Mobile-Sierra* standard of review. Stated differently, parties seeking to reserve the contractual right to seek modification under a just and reasonable standard of review must do so clearly and explicitly. Accordingly, we propose to prescribe terms parties must use to evidence an intent to have the Commission review modifications to jurisdictional agreements that are not agreed to by the signatories (or their successors) under the just and reasonable standard. In the absence of such prescribed language, we propose to review modifications to jurisdictional agreements that are not agreed to by all signatories (or their successors) under the public interest standard. New agreements and modifications to jurisdictional agreements that are agreed to by all signatories (or their successors), however, will continue to be reviewed under the just and reasonable standard. As we have explained with regard to the former, 19 we are not bound to employ a public interest standard of review when we undertake our initial review of an agreement. 20 19 *See, e.g., ITC Holdings Corp.,* 102 FERC ¶ 61,182 at P 77, *reh'g denied,* 104 FERC ¶ 61,033 (2003); *Florida Power & Light Co.,* 67 FERC ¶ 61,141 at 61,398-99 (1994); *Southern Company Services, Inc.,* 67 FERC ¶ 61,080 (1994). 20 *See also Northeast Utilities Service Co.,* 993 F.2d 937 at 961 (1st Cir. 1993). IV. Information Collection Statement 11. The Commission is not imposing an information collection requirement upon the public. Therefore, this proposed rule is not subject to review by the Office of Management and Budget. V. Environmental Analysis 12. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment. 21 The Commission concludes that neither an Environmental Assessment nor an Environmental Impact Statement is required for this NOPR pursuant to § 380.4(a)(2)(ii) of the Commission regulations, which provides a “categorical exclusion” for rules that do not substantively change the effect of legislation. 22 21 *Regulations Implementing the National Environmental Policy Act,* Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs., Regulations Preambles 1986-1990 ¶ 30,783 (1987). 22 18 CFR 380.4(a)(2)(ii). VI. Regulatory Flexibility Act Certification 13. The Regulatory Flexibility Act of 1980

(RFA)23 requires that a rulemaking contain either a description and analysis of the effect that the proposed rule will have on small entities or a certification that the rule will not have a significant economic impact on a substantial number of small entities. However, the RFA does not define “significant” or “substantial” instead leaving it up to an agency to determine the impact of its regulations on small entities. 23 5 U.S.C. 601-12. 14. In drafting this rule, the Commission has followed the provisions of both the RFA and the Paperwork Reduction Act to consider the potential impact of regulations on small business and other small entities. The cost of compliance with the rule proposed herein, if finalized, will be minimal. Accordingly, pursuant to § 605(b) of the RFA, the Commission hereby certifies the rule proposed herein, if finalized, will not have a “significant economic impact on a substantial number of small entities.” VII. Comment Procedures 15. The Commission invites interested persons to submit comments on the matters and issues proposed in this notice to be adopted, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due February 3, 2006. Comments must refer to Docket No. RM05-35-000, and must include the commenter's name, the organization represented, if applicable, and the commenter's address. Comments may be filed either in electronic or paper format. 16. Comments may be filed electronically via the eFiling link on the Commission's Web site at *http://www.ferc.gov.* The Commission accepts most standard word processing formats and commenters may attach additional files with supporting information in certain other file formats. Commenters filing electronically do not need to make a paper filing. Commenters that are not able to file comments electronically must send an original and fourteen

(14)copies of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street, NE., Washington, DC 20426. 17. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters. VIII. Document Availability 18. In addition to publishing the full text of this document in the **Federal Register** , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through FERC's Home Page ( *http://www.ferc.gov* ) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426. 19. From the Commission's Home Page on the Internet, this information is available in the Commission's document management system, eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field. 20. User assistance is available for eLibrary and the FERC's Web site during normal business hours. For assistance, please contact FERC Online Support at 1-866-208-3676 (toll free) or 202-502-6652 (e-mail at *FERCOnlineSupport@FERC.gov* ), or the Public Reference Room at 202-502-8371, TTY 202-502-8659 (e-mail at *public.referenceroom@ferc.gov* ). List of Subjects 18 CFR Part 35 Electric power rates, Electric utilities, Reporting and recordkeeping requirements. 18 CFR Part 370 Electric power; Natural gas; Pipelines. By direction of the Commission. Commissioner Kelly dissenting with a separate statement attached. Magalie R. Salas, Secretary. In consideration of the foregoing, the Commission proposes to amend Chapter I, Title 18, Code of Federal Regulations, as follows: PART 35—FILING OF RATE SCHEDULES AND TARIFFS 1. The authority citation for part 35 continues to read as follows: Authority: 16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7252. § 35.1 [Amended] 2. In § 35.1, paragraph

(d)is removed, and paragraphs (e), (f), and

(g)are redesignated as paragraphs (d), (e), and (f). 3. Subchapter V, consisting of part 370, is added to read as follows: Subchapter V—Standard of Review PART 370—STANDARD OF REVIEW FOR MODIFICATIONS TO JURISDICTIONAL AGREEMENTS Authority: 15 U.S.C. 717-717w, 3301-3432; 16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7252. § 370.1 Applicability. (a)(1) The provisions of this paragraph shall apply to all Commission-jurisdictional agreements under the Federal Power Act executed on or after __, except for transmission service agreements under an open access transmission tariff as provided for under Order No. 888. If contracting parties intend to permit the Commission, either on its own motion or upon complaint under section 206 of the Federal Power Act, to modify a previously executed agreement under the “just and reasonable” standard of review, rather than the “public interest” standard of review, the agreement shall contain the following language: The standard of review the Commission shall apply when acting on proposed modifications to this agreement, either on the Commission's own motion or on behalf of a signatory or a non-signatory, shall be the “just and reasonable” standard of review rather than the “public interest” standard of review.

(2)If the agreement does not contain the aforementioned language, the Commission shall review proposed modifications to a previously executed agreement that are not agreed to by the signatories (or their successors) under the “public interest” standard of review rather than the “just and reasonable” standard of review. Editorial Note: The following statement of dissent will not appear in the Code of Federal Regulations. KELLY, Commissioner, *dissenting:* In this NOPR, the Commission proposes to bind itself to the “public interest” standard of review, pursuant to the *Mobile-Sierra* doctrine, when acting under FPA section 206 or NGA section 5, unless parties include language allowing the Commission to apply the “just and reasonable” standard specified by the statutes. This proposal is an abdication of the statutory authority and obligations entrusted to the Commission by Congress and is contrary to the will of Congress. In addition, this proposed regulation is not compelled by court or Commission precedent and it will not achieve the stated goal of “providing certainty and stability in energy markets.” 1 On the contrary, in order to foster certainty and stability, the Commission should apply the same “just and reasonable” standard of review to these jurisdictional agreements that the Commission proposes to retain with respect to electric transmission and gas transportation service agreements. Therefore, I dissent from this NOPR. 1 NOPR at P 10. I. Abdication of the Commission's Statutory Authority The Federal Power Act and the Natural Gas Act clearly direct the Commission to follow the “just and reasonable” standard when acting under FPA section 206 or NGA section 5. Section 206(a) of the FPA provides that, whenever the Commission may find an “unjust, unreasonable, unduly discriminatory or preferential” rate or contract, it “shall fix the same by order.” 2 Section 5 of the Natural Gas Act grants the Commission similar authority in the gas field. These provisions are essential to carrying out the Commission's obligations and must not be effectively read out of the statutes as the Commission proposes to do here. 2 16 U.S.C. 824e(a) (2000). In spite of Congress's clear directive that the Commission use a “just and reasonable” standard of review, the Commission proposes in this NOPR to eschew such a review and instead follow a stricter *Mobile-Sierra* “public interest” standard unless contracting parties specify that they intend to permit the Commission to act under the “just and reasonable” standard. 3 Thus, with this NOPR, the Commission proposes to abdicate its statutory obligation to review rates, terms and conditions under the just and reasonable standards of the FPA and NGA. 3 The Ninth Circuit Court of Appeals is currently reviewing Commission orders involving standard of review issues within the context of complaints seeking modification of long-term contracts executed during the Western energy crisis in 2000-2001. *See Public Utility District No. 1 of Snohomish County, Washington, et al.* v. *FERC,* 9th Cir. Nos. 03-72511, *et al.* and *Public Utilities Commission of the State of California,* *et al.* v. *FERC,* 9th Cir. Nos. 03-74207, *et al.* Parties can bargain away by contract their statutory rights to Commission review of future rate changes under the “just and reasonable” standard. However, the NOPR goes far beyond this well-established principle. First, under this NOPR, the Commission presumes that the parties intended the *Mobile-Sierra* “public interest” standard to apply even when the contract is silent as to the parties' intent. Second, the Commission would apply this imputed *Mobile-Sierra* “public interest” standard in FPA section 206 or NGA section 5 proceedings initiated by the Commission acting on its own motion, or on behalf of a party or a third party. When a jurisdictional contract is unclear as to what the parties intended, I believe the default standard should be that which is contained in the governing statute. I also do not believe that the Commission should bind itself to a *Mobile-Sierra* public interest standard of review, which some courts have described as “practically insurmountable,” where the Commission is acting on its own motion or on behalf of third parties. As the D.C. Circuit recently held in *Atlantic City* , a case in which the court struck down Commission action denying jurisdictional utilities their FPA section 205 filing rights, the Commission may not take away rights expressly granted by statute. 4 With its action today, the Commission proposes to do just that. 4 *See Atlantic City Elec. Co.* v. *FERC* , 295 F.3d 1, 9-10 (D.C. Cir. 2002). II. Court and Commission Precedent Do Not Require This Proposed Action The NOPR states that the Commission acts today, in part, at the suggestion of the First Circuit in *Boston Edison* 5 to eliminate uncertainty regarding whether the *Mobile-Sierra* “public interest” or the “just and reasonable” standard applies in the face of contractual silence. 6 Specifically, the court in *Boston Edison* suggested that the Commission prescribe prospectively the terms that parties would have to use to invoke the “public interest” standard. That is not what the Commission has done here. Instead of telling contracting parties what language they can use to invoke the “public interest” standard, the Commission provides that the parties need take no action, nor use any language, to invoke that standard. Under the NOPR, the “public interest” standard will be available at all times, in all circumstances, when the contract is silent. Thus, a “public interest” standard becomes the default standard, and the Commission prescribes terms that parties must include in their contract to keep their statutory right to a “just and reasonable” standard. This turns the statute on its head. 5 *Boston Edison Co.* v. *FERC* , 233 F.3d 60 (1st Cir. 2000). 6 The *Boston Edison* court noted that even cases within the D.C. Circuit “do not form a completely consistent pattern.” *Id.* at 67, citing *Texaco Inc.* v. *FERC* , 148 F.3d 1091, 1096 (D.C. Cir. 1998) and *Union Pacific Fuels, Inc.* v. *FERC* , 129 F.3d 157, 161-62 (D.C. Cir. 1997) (where the D.C. Circuit, faced with contracts in which parties did not expressly state what standard of review would apply to rate changes initiated by the Commission held in the former case that the Commission could only modify the contract under a “public interest” standard but, in the latter case, that the Commission could apply a “just and reasonable” standard). In addition, the NOPR does not explain that the *Boston Edison* court went on to opine that “FERC has reasonably broad powers to regulate the substantive terms of filings that it accepts and allows to become effective,” which may “include the power to require prospectively, by regulation that all contracts set their rates subject to FERC's just and reasonable standard.” 7 That is the action that the Commission should be proposing today. 7 *Boston Edison* , 233 F.3d at 68. The Commission erroneously relies on the initial *Mobile* 8 and *Sierra* 9 cases as support for its proposal to default to the *Mobile-Sierra* “public interest” standard in FPA section 206 or NGA section 5 proceedings. The NOPR states that these cases stand for the proposition that the Supreme Court interpreted contractual silence as requiring the “public interest” standard of review. The implication is that the Court requires a “public interest” standard of review in FPA section 206 and NGA section 5 proceedings initiated by a buyer or the Commission. That is not the case. *Mobile* and *Sierra* involved what standard of review should apply when regulated sellers with contracts already on file with the Commission attempted to unilaterally raise the contractual rate by filing for a new rate under section 205 and section 4 and showing that the new rate was just and reasonable. These cases did not involve what standard of review should apply when a buyer or the Commission challenges the rate on file as unjust and unreasonable under FPA section 206 or NGA section 5. Here, the Commission proposes to bind itself to the stricter *Mobile-Sierra* “public interest” standard of review when acting under section 206 or section 5 where parties are silent as to the applicable standard of review. *Mobile* and *Sierra* do not support this proposed action. 8 *United Gas Pipe Line Co.* v. *Mobile Gas Serv. Corp.,* 350 U.S. 332 (1956). 9 *FPC* v. *Sierra Pacific Power Co.* , 350 U.S. 348 (1956). The proposed regulation also departs abruptly from the Commission's precedent on what standard of review applies when the Commission acts *sua sponte* or on behalf of non-parties. 10 Yet the NOPR relies on this same precedent to support its assertion that the Commission is not bound to employ a “public interest” standard of review when the Commission undertakes an initial review of an agreement. 11 10 *See ITC Holdings Corp.* , 102 FERC ¶ 61,182 (2003); *Southern Company Services* , 67 FERC ¶ 61,080 (1994); and *Florida Power & Light Co.,* 67 FERC ¶ 61,141 (1994). 11 *See* NOPR at P 10 & n. 19. III. Certainty and Stability in Energy Markets I disagree with the NOPR's assertion that the proposed regulation will provide certainty and stability in energy markets. Adopting a *Mobile-Sierra* “public interest” standard as the new default standard of review in section 206 and section 5 proceedings with respect to these jurisdictional agreements will inject uncertainty and instability into the industries. As the NOPR recognizes, the “public interest” standard of review is not clearly defined. Courts have variably described this standard as “practically insurmountable” 12 and as not being “considered ‘practically insurmountable' in all circumstances.” 13 The First Circuit has opined that “[i]t all depends on whose ox is gored and how the public interest is affected.” 14 Adoption of a new, default “public interest” standard of review opens the door to uncertainty and extensive future litigation to resolve its meaning. 12 *Papago Tribal Util. Auth.* v. *FERC* , 723 F.2d 950, 954 (D.C. Cir. 1983), cert. denied, 467 U.S. 1241 (1984). 13 *Northeast Utils. Serv. Co.* , 55 F.3d 686, 692 (1st Cir. 1995). *See also Potomac Electric Power Co.* v. *FERC* , 210 F.3d 403, 408 (D.C. Cir. 2000) (court concurring with the First Circuit's finding that when acting *sua sponte* or at the request of a third party to change rates, the Commission is not bound to a standard of review that is “practically insurmountable”). 14 55 F.3d at 691. To achieve the goal of certainty and stability in energy markets, the Commission should act to preserve the application of the statutory “just and reasonable” standard of review as the default when the parties’ intent is unspecified or unclear. The “just and reasonable” standard has been used extensively over the last 70 years to review rates, terms and conditions in both the electricity and gas industries. It is well-known and well-defined. It has guided contracting in these industries for the life of them. It has provided a clear benchmark against which to draft a contract and craft performance of that contract. There is no evidence that this standard has been a problem for contracting parties, or for the industries themselves. There is no evidence that this standard has been a hindrance to contract sanctity. In fact, this NOPR acknowledges as much by proposing to continue to apply the “just and reasonable” standard to electric transmission and gas transportation service agreements. Certainty and stability in the electric and gas industries will only be fostered by consistent regulation. Accordingly, for the reasons discussed above, I respectfully dissent. Suedeen G. Kelly [FR Doc. E5-8217 Filed 1-3-06; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF AGRICULTURE Forest Service 36 CFR Part 219 RIN 0596-AC43 National Forest System Land Management Planning AGENCY: Forest Service, USDA. ACTION: Notice of proposed rulemaking; request for comment. SUMMARY: The Forest Service is proposing a technical change to the transition language contained in the 2005 planning rule (70 FR 1023; Jan. 5, 2005). The current transition language requires plan revisions initiated after January 5, 2005, to conform to the requirements in the 2005 planning rule. In response to a court order affecting only the Tongass National Forest, the proposed amendment would allow the Tongass National Forest to revise its land management plan to address the errors identified by the court either under the 2005 Rule or the planning regulations in effect before November 9, 2000. DATES: Comments must be received in writing by February 3, 2006. Comments received after this date may be considered and placed in the record at the discretion of the Forest Service. ADDRESSES: Send written comments to: USDA FS Planning Rule Technical Amendment, P.O. Box 21628, Juneau, AK 99802-1628, Attn: Cherie Shelley; via e-mail to *planning_rule_technical _amendment@fs.fed.us;* or by facsimile to Planning Rule Technical Amendment Comments at

(907)586-7852. Comments also may be submitted by following the instructions at the Federal eRulemaking portal at *http://www.regulations.gov* . If comments are sent by e-mail or facsimile, the public is requested not to send duplicate comments via regular mail. Please confine comments to issues pertinent to the proposed rule, explain the reasons for any recommended changes and, where possible, reference the specific wording being addressed. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The agency cannot confirm receipt of comments. Persons wishing to inspect the comments need to call

(907)586-8886 to facilitate an appointment. FOR FURTHER INFORMATION CONTACT: Cherie Shelley, Director, Ecosystem Planning, Alaska Region, Forest Service, USDA at

(907)586-8887, or Dave Barone, Planning Specialist, Ecosystem Management Coordination Staff, Forest Service, USDA at

(202)205-1019. SUPPLEMENTARY INFORMATION: Background On January 5, 2005, the Department of Agriculture published a final planning rule (70 FR 1023) governing the development of land management plans required by the National Forest Management Act. The 2005 planning regulations provide for a transition period from the previous planning regulations (1982 planning rule) to the new regulations (2005 planning rule). Specifically, § 219.14 of the 2005 planning rule allows plans to be amended under either the 1982 planning rule or the 2005 planning rule during the transition period; however, newly initiated revisions may only use the 2005 planning rule. One of the differences between the 1982 planning rule and the 2005 planning rule is that the former required the development of an environmental impact statement

(EIS)as part of the process to revise a land management plan. On August 5, 2005, the Ninth Circuit Court of Appeals issued a decision in *Natural Resources Defense Council* v. *U.S. Forest Service* , 421 F.3d 797, that found errors in the 1997 Final EIS and Record of Decision for the Tongass Land Management Plan. In its decision, the court made several statements indicating its intent that the Forest Service prepare a new EIS for a plan revision addressing the errors identified by the court. For this unique situation, this proposed rule will allow the Tongass National Forest to use the 1982 planning rule to revise its plan to meet the expectations of the U.S. Court of Appeals for the Ninth Circuit. The Forest Service is seeking public comment on this proposed rule to amend 36 CFR 219.14(d)(1) to allow the Tongass National Forest to use either the 1982 planning rule or the 2005 planning rule for its next revision addressing the court's order. Regulatory Certifications Regulatory Impact This proposed rule has been reviewed under USDA procedures and Executive Order 12866, Regulatory Planning and Review. It has been determined that this is not a significant rule. This rule will not have an annual effect of $100 million or more on the economy nor adversely affect productivity, competition, jobs, the environment, public health or safety, nor State or local governments. This rule will not interfere with an action taken or planned by another agency nor raise new legal or policy issues. Finally, this action will not alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients of such programs. Accordingly, this proposed rule is not subject to Office of Management and Budget review under Executive Order 12866. Proper Consideration of Small Entities This proposed rule has been considered in light of Executive Order 13272 regarding proper consideration of small entities and the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), which amended the Regulatory Flexibility Act (5 U.S.C. 601 *et. seq.* ). The proposed rule would make a technical amendment to the transition language of the 2005 planning rule, to allow the Tongass National Forest to use either the current planning regulations or the regulations in effect before November 9, 2000 for its next land management plan revision. An initial small entities flexibility assessment has been made, which indicates that the proposed rule will impose no additional requirements on the affected public, which includes small businesses, small not-for-profit organizations, or small units of government. Accordingly, it has been determined that this proposed rule will not have a significant economic impact on a substantial number of small entities as defined by SBREFA. No Environmental Impact This proposed rule would allow the Tongass National Forest to use either the existing planning regulations or the planning regulations in effect before November 9, 2000 for the next revision of its land management plan to respond to the court's order. As such, the proposed rule has no direct and immediate effects regarding the occupancy and actual use of the Tongass National Forest. Section 31.12

(2)of Forest Service Handbook 1909.15 (57 FR 43168; September 18, 1992) excludes from documentation in an environmental assessment or impact statement “rules, regulations, or policies to establish Service-wide administrative procedures, program processes, or instruction.” The 2005 planning regulations are a Service-wide program process. The agency's assessment is that this rule falls within this category of actions and that no extraordinary circumstances exist which would require preparation of an environmental assessment or an environmental impact statement. Energy Effects This proposed rule has been reviewed under Executive Order 13211 of May 18, 2001, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. It has been determined that this rule does not constitute a significant energy action as defined in the Executive order. Procedural in nature, this proposed rule would allow the Tongass National Forest to use either the regulations currently in place or the planning regulations in effect before November 9, 2000 for the next revision of its land management plan to respond to the court's order. This plan is a programmatic document that provides guidance and information for future project-level resource management decisions. The revised plan may designate major rights-of-way corridors for utility transmission lines, pipelines, and water canals. The effects of such designations on energy supply, distribution, or use will be considered at the time such designations are proposed. Controlling Paperwork Burdens on the Public This proposed rule does not contain any additional record keeping or reporting requirements or other information collection requirements as defined in 5 CFR part 1320 that are not already required by law or not already approved for use and, therefore, imposes no additional paperwork burden on the public. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ) and its implementing regulations at 5 CFR part 1320 do not apply. Federalism The agency has considered this proposed rule under the requirements of Executive Order 13132, Federalism. The agency has made a preliminary assessment that the rule conforms with the federalism principles set out in this Executive orders; would not impose any compliance costs on the States; and would not have substantial direct effects 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. Based on comments received on this proposed rule, the agency will determine if any additional consultation will be needed with State and local governments prior to adopting a final rule. Consultation With Tribal Governments This proposed rule does not have tribal implications as defined in Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, and, therefore, advance consultation with tribes is not required. No Takings Implications This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 12630, and it has been determined that the rule does not pose the risk of a taking of private property. This proposed rule only allows the Tongass National Forest to use either the existing planning regulations or the regulations in effect before November 9, 2000 for its next plan revision. Civil Justice Reform This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. The agency has not identified any State or local laws or regulations that are in conflict with this regulation or that would impede full implementation of this rule. Nevertheless, in the event that such a conflict was identified, the proposed rule, if implemented, would preempt the State or local laws or regulations found to be in conflict. However, in that case,

(1)no retroactive effect would be given to this proposed rule; and

(2)the Department would not require the parties to use administrative proceedings before parties may file suit in court challenging its provisions. Unfunded Mandates Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), which the President signed into law on March 22, 1995, the agency has assessed the effects of this proposed rule on State, local, and Tribal governments and the private sector. This rule does not compel the expenditure of $100 million or more by any State, local, or Tribal governments or anyone in the private sector. Therefore, a statement under section 202 of the act is not required. List of Subjects in 36 CFR Part 219 Administrative practice and procedure, Environmental impact statements, Indians, Intergovernmental relations, Forest and forest products, National forests, Natural resources, Reporting and recordkeeping requirements, Science and technology. Therefore, for the reasons set forth in the preamble, the Forest Service proposes to amend subpart A of part 219 of title 36 of the Code of Federal Regulations as follows: PART 219—PLANNING Subpart A—National Forest System Land Management Planning 1. The authority citation for subpart A continues to read as follows: Authority: 5 U.S.C. 301; 16 U.S.C. 1604, 1613. 2. Amend § 219.14 by revising paragraph (d)(1) to read as follows: § 219.14 Effective dates and transition. (d)(1) Plan development and plan revisions initiated after January 5, 2005 must conform to the requirements of this subpart, except that the plan for the Tongass National Forest may be revised once under this subpart or the planning regulations in effect before November 9, 2000. Dated: December 16, 2005. Dale N. Bosworth, Chief, USDA Forest Service. [FR Doc. E5-8245 Filed 1-3-06; 8:45 am] BILLING CODE 3410-11-P CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD 40 CFR Part 1604 Accident Investigation Initiation Notice and Order To Preserve Evidence AGENCY: Chemical Safety and Hazard Investigation Board. ACTION: Proposed rule. SUMMARY: The Chemical Safety and Hazard Investigation Board

(CSB)proposes the adoption of the following regulation that is intended to notify the owner and/or operator of a facility that suffers an accidental release as defined by the Clean Air Act Amendments of 1990, (also referred to here as a chemical “accident” or “incident”), that the CSB intends to deploy investigators to its facility, and that relevant evidence must be preserved. Under this regulation, site control would remain the responsibility of the owner and/or operator of the affected facility. However, owners/operators are required by this regulation to exercise care to ensure that the accident scene and relevant evidence found therein is adequately protected from alteration. DATES: Written comments must be received on or before February 3, 2005. ADDRESSES: You may submit written comments concerning this proposed rule, by the following method: • Mail/Express delivery service: Chemical Safety and Hazard Investigation Board, Office of General Counsel, Attn: Christopher Warner, 2175 K Street, NW., Suite 650, Washington, DC 20037. FOR FURTHER INFORMATION CONTACT: Christopher Warner, 202-261-7600. SUPPLEMENTARY INFORMATION: Preserving physical evidence at an accident scene is an important component in all manner of investigations. In a chemical accident investigation, securing an accident scene and preserving the integrity of the evidence contained therein is critical, especially where significant explosions or fires have destroyed some or much of the relevant physical evidence at the accident site. According to one good-practice guideline on chemical accident investigation, securing the scene in order to preserve evidence is the first priority of an investigator after all first responder responsibilities are met ( *i.e.* , to rescue victims and provide them with medical treatment, stabilize and secure the accident scene, and address imminent environmental concerns in accordance with controlling law). See, generally, Guidelines for Investigating Chemical Process Incidents, Center for Chemical Process Safety of the American Institute of Chemical Engineers, pp. 108-109, 115-122 (2nd ed. 2003), available in bookstores, libraries, and directly from CCPS at 3 Park Avenue, New York, NY 10016, or *http://www.aiche.org/ccps.* The CSB's enabling statute provides the CSB with broad authority to establish any regulations needed to meet the requirements of its investigative mission. Specifically, the Board is authorized to establish such procedural and administrative rules as are necessary to the exercise of its functions and duties. In addition to this broad statutory authority, the legislative history accompanying the CSB's enabling statute lists “five enumerated duties” for the Board, the third of which includes the duty to establish measures to preserve evidence which may substantiate the cause or probable cause of an accident. Pertinent legislative history also provides that Board regulations shall provide for the preservation of evidence at the site of the accident so that the Board may properly conduct an investigation to determine the cause or probable cause when its representatives arrive at the site of the accident. Moreover, Congress specifically intended that the CSB be empowered to regulate the activities of other parties during accident investigations undertaken by the CSB. Through this proposed regulation, the CSB intends to establish the means by which it will preserve accident scenes/sites, and the evidence within those sites. The CSB proposes a procedure by which it may issue a written “Notice of Accident Investigation Initiation and Order to Preserve Evidence.” The Notice shall identify the CSB's Investigator-in-Charge (IIC), provide contact information, and an official investigation number. The Notice shall also specify that the owner/operator continues to be responsible for the security and protection of its own site, including any real or personal property located therein, and that the owner/operator continues to be responsible for the protection of the life, health, and safety of its employees or any other people affected by the accident under investigation, as well as compliance with all federal, state, or local laws. Last, the Notice shall specifically inform the owner/operator of its legal obligation to preserve the accident site, to the maximum extent possible, in its original, post-accident state, and to preserve any evidence at the site that is or might reasonably be relevant to the CSB's investigation. The CSB recognizes that emergency response and mitigation activities will take precedence over the preservation of evidence and anticipates that most emergency response activities will be concluded prior to the issuance of a Notice under this rule. This rule is not intended to interfere in any manner with critical first response activities—the rescue of victims and necessary steps to address immediate public health and environmental concerns in accordance with controlling law. The rule defines such emergency response activities as “qualifying emergencies.” In the event that an owner/operator anticipates changing or modifying the site or any evidence following the issuance of a Notice, the owner/operator would be required to contact the CSB and, if advance notice to the CSB is not possible, to document the condition of the site. The CSB is aware that there may be multiple Federal, state, and local agencies responding to an incident and each agency will have specific authorities and responsibilities. The regulation specifically states that it “shall not be interpreted to abrogate or supersede any other Federal, State, or local agencies' ability to provide emergency response or to perform their duties arising under law.” The CSB coordinates its field investigative activities with other parties in accordance with the National Incident Management System and through memoranda of understanding with specific agencies. The CSB has Memoranda of Understanding with ATF, OSHA, EPA, NIST, and the NTSB which set out procedures for dealing with site specific issues. The CSB also works with owners/operators and other governmental responders to enter into site-specific evidence preservation agreements. Where such voluntary agreements can be entered into quickly and in a manner that does not compromise the CSB's investigation, a Notice under this rule may not be necessary, or if one is issued, it may be rescinded upon execution of such an agreement. This regulation does not address specific issues that may arise between Federal, State, and local agencies regarding custody of or testing of evidence in specific investigations. Such issues are worked out on a case-by-case basis with interested parties. The CSB, therefore, proposes the following rule to address critical issues surrounding evidence preservation in order that CSB investigators have the fullest possible opportunity to determine the causes of chemical accidents to which they are deployed. The CSB invites comments on these proposed regulations. Regulatory Impact Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) requires that a rule that has a significant economic impact on a substantial number of small entities, small businesses, or small organizations must include an initial regulatory flexibility analysis describing the regulation's impact on such small entities. This analysis need not be undertaken if the agency has certified that the regulation will not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605(b). The CSB has considered the impact of this proposed rule under the Regulatory Flexibility Act. The CSB's General Counsel, Christopher W. Warner, certifies that this final rule will not have a significant economic impact on a substantial number of small entities. Paperwork Reduction Act We reviewed this rule to determine whether it invokes issues that would subject it to the Paperwork Reduction Act (PRA). While the PRA applies to agencies and collections of information conducted or sponsored by the CSB, the Act, 44 U.S.C. 3518(c), exempts collections of information that occur “during the conduct of * * * an administrative action, investigation, or audit involving an agency against specific individuals or entities,” except for investigations or audits “undertaken with reference to a category of individual or entities such as a class of licensees or an entire industry.” The rule adopted below comes squarely within this exemption, as it deals entirely with administrative investigations and actions involving specific individuals or entities. Therefore, we have determined that the PRA does not apply to this rule. Unfunded Mandates Reform Act of 1995 This proposed rule does not require the preparation of an assessment statement in accordance with the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531. This rule does not include a Federal mandate that may result in the annual expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of more than the annual threshold established by the Act ($123 million in 2005, adjusted annually for inflation). List of Subjects in 40 CFR Part 1604 Administrative practice and procedure, Investigations. Dated: December 27, 2005. Raymond C. Porfiri, Deputy General Counsel. Accordingly, for the reasons set forth in the preamble, the Chemical Safety and Hazard Investigation Board proposes to add a new 40 CFR part 1604 to read as follows: PART 1604—NOTICE OF ACCIDENT INVESTIGATION INITIATION AND ORDER TO PRESERVE EVIDENCE Sec. 1604.1 Purpose and Scope of Regulations. 1604.2 Definitions. 1604.3 Procedures. 1604.4 Enforcement. Authority: 42 U.S.C. 7412(r)(6)(N). § 1604.1 Purpose and Scope of Regulations. The purpose of this regulation is to provide for the preservation of evidence at the site of an accidental release so that the Chemical Safety and Hazard Investigation Board

(CSB)may conduct a full investigation to determine the cause or probable cause of a release. This regulation applies only to an accidental release to which the CSB deploys or intends to deploy investigators as part of a Field Investigation Team or Preliminary Assessment Team, and only where the owner and/or operator of the facility that suffered an accidental release receives a “Notice of Accident Investigation Initiation and Order to Preserve Evidence,” as outlined in this rule. § 1604.2 Definitions. Accidental Release refers to an unanticipated emission of a substance regulated under 42 U.S.C. 7412, or other extremely hazardous substance into the ambient air from a stationary source resulting in a fatality, serious injury, or substantial property damages. Field Investigation Team refers to one or more CSB personnel, in the possession of appropriate credentials and a Notice of Inspection Authority, and led by a designated CSB Investigator-in-Charge (IIC), who has been authorized by the CSB to investigate an accidental release. Preliminary Assessment Team refers to one or more CSB personnel, in the possession of appropriate credentials and a Notice of Inspection Authority, and led by a designated IIC, that has been tasked by the CSB to make a preliminary factual analysis of an accidental release in order that the CSB can make an informed decision as to whether or not the CSB will undertake an investigation of an incident. Qualifying emergency refers to genuine emergency situations or circumstances that include:

(1)Removing persons injured or trapped and obtaining for them needed medical attention or removing the remains of deceased persons;

(2)Extinguishing fires;

(3)Stabilizing an accident scene to the extent necessary to protect the facility from further imminent damage;

(3)Protecting workers or the public from additional releases or other potential source(s) of injury;

(4)Complying with any Federal, State, or local environmental laws requiring an immediate response (including but not limited to immediate accident reporting, clean up of any pollutants or hazardous substances, mitigation, etc.); and

(5)Taking any other actions required to meet the lawful obligations imposed by any other Federal, State, or local laws. Preserve an accident site or scene refers to the obligation of a facility owner and/or operator to maintain and keep intact the status quo with respect to the site (or scene) of an accidental release, including but not limited to the part of the facility in which a chemical accident occurred, as well as the area immediately adjacent to the site of the accident. The “accident site or scene” portion of this definition must necessarily be flexible, and is to be determined based on an analysis of the totality of the circumstances. An accident site or scene could therefore be small, such as an accident that occurred indoors and is limited to a single room. Conversely, an accident site or scene could be quite large, such as when debris and other relevant evidence is scattered over a wide area following an explosion. This obligation necessarily includes but is not limited to the notification requirements in § 1604.3(g). Protect any relevant evidence refers to the obligation of a facility owner and/or operator to ensure that any evidence within an accident site or scene is not tampered with, moved, or in any other way altered or changed, and the status and integrity of the evidence is protected from post-accident human intervention. This obligation extends to any personnel working for or on behalf of the owner/operator. It also includes taking reasonable steps to protect any such evidence from third party intervention through appropriate security and/or other site control measures. The “relevant evidence” portion of this definition includes any structures, artifacts, machine(s), device(s), apparatus(es), process(es), control(s), equipment, sample(s), substance(s), and/or any other physical objects or documents that a reasonable person would believe might help establish the cause or causes of the accident under investigation. This obligation necessarily includes but is not limited to the notification requirements in § 1604.3(g). § 1604.3 Procedures.

(a)After a decision has been made by the CSB to deploy investigators to the site or scene of an accidental release, the CSB IIC designated to lead any type of CSB team at a particular accident scene may issue a Notice of Accident Investigation Initiation and Order to Preserve to the owner and/or operator of the facility that suffered the accident. Such a notice shall be issued whenever an IIC has determined that physical evidence at the site is in danger of being removed, altered, or tampered with. The Notice shall identify the IIC by name, and it shall also provide appropriate contact information, an official investigation number, and an estimate of when CSB personnel will arrive at the scene, if they have not already arrived. The Notice shall also specify that the owner/operator continues to be responsible for the security and protection of its own site, and any real or personal property located therein, and that nothing in this regulation or any subsequent site control agreement that might be entered into relieves the owner/operator of its obligations under law to protect the life, health, and safety of its employees or any other people affected by the accident under investigation, or any of its other obligations under any other federal, state, or local law.

(b)In the same Notice, the IIC shall further inform the owner and/or operator that the owner/operator is required to preserve the accident site or scene, and that the owner/operator must protect any relevant evidence therein which may assist the CSB in determining the cause or causes of the accidental release, subject to the provisions of paragraphs

(c)and

(d)of this section. Special attention should be given to preserve records; files; papers; electronic records; processes; controls; facilities; and samples of substances, physical objects, or any documents believed to be involved in the accident, or in any way relevant to the accident and/or the CSB investigation. With respect to records of any type, the Notice shall specify that an owner/operator is required to preserve relevant records that may be stored at a different location. The Notice will also indicate that such items shall also be made readily available to CSB personnel at the first reasonable opportunity.

(c)Upon receipt of a Notice of Accident Investigation Initiation and Order to Preserve signed by a CSB IIC, an owner and/or operator must acknowledge receipt in writing and post a copy of the Notice of Accident Investigation Initiation and Order to Preserve in a conspicuous place such as in the immediate area of, adjacent to, or at the entrance to, the machine(s), device(s), apparatus(es), process(es), control(s), equipment, sample(s), or substance(s) and any other physical objects or documents that are believed to be relevant in determining the cause(s) of the accident. An owner/operator should post additional copies of the notice at different areas of the scene if that would aid site preservation. In addition, the owner and/or operator must comply with the Order to the maximum extent possible, and must refrain from any activity that would affect the accident scene/site, or potential evidence contained therein, except to the extent necessary to respond to a qualifying emergency as defined in § 1604.2.

(d)When it appears it will become necessary to disturb an accident scene/site or any evidence contained therein in any way prior to the arrival of CSB personnel due to the existence of a qualifying emergency, the owner or operator of the facility shall notify the CSB as soon as possible of the existence of a qualifying emergency and allow the CSB the opportunity to:

(1)Comment on the nature and extent of proposed alteration to the evidence or scene/site;

(2)attempt to document the evidence/site through appropriate means, as quickly as possible, including through the use of a third party; or

(3)seek other appropriate actions, including but not limited to an emergency court order in federal court to prohibit the proposed alteration to the evidence/site.

(e)If advance notice to the CSB is not possible under the circumstances prior to the alteration of the accident site or evidence due to existence of a qualifying emergency, post-action written notice must be given to the CSB as soon as possible after the alteration, which must include the following:

(1)A complete explanation as to why advance notice could not be provided to the CSB prior to altering the evidence/site;

(2)a complete description of all actions taken, and by whom, to rectify the emergency;

(3)a chronological timeline of events that includes all actions from the original accidental release through the termination of responsive activities required by the qualifying emergency; and

(4)photographic or video evidence, and any other documentation (i.e., descriptive notes, sketches, or other such documentation) indicating the original position and condition of any evidence which had to be moved or altered, as well as any changes to the accident site itself.

(f)A Notice of Accident Investigation Initiation and Order to Preserve shall remain in effect until the owner and/or operator of the facility in question receives written notice from the IIC or other CSB official designated by the Chairperson that the original Order to Preserve has been rescinded. A signed site control agreement does not negate or otherwise nullify a previously issued Notice of Accident Investigation Initiation and Order to Preserve unless such agreement contains a specific provision rescinding that Order.

(g)This regulation shall not be interpreted to mean that the CSB is authorized to bar any party from entering an accident site to pursue their own independent investigation when that party is authorized by relevant law to enter the site and conduct an investigation. However, owners and/or operators of facilities that have suffered an accidental release, upon receipt of a CSB Notice of Accident Investigation Initiation and Order to Preserve, shall ensure that its employees, its contractors, and any third parties that might seek access to the owner's and/or operator's property, wherever it may be located, have been provided a copy of the Notice of Accident Investigation Initiation and Order to Preserve.

(h)This regulation shall not be interpreted to abrogate or supersede the designation of the National Transportation Safety Board as the lead agency with respect to chemical accidents in the transportation sector, pursuant to 49 U.S.C. 1101 et seq.

(i)This regulation shall not be interpreted to abrogate or supersede any other Federal, State, or local agencies' ability to provide emergency response or to perform their duties arising under law. In most instances, the actions taken by emergency responders should not conflict with the requirement to preserve relevant evidence. In the event that the owner and/or operator of a facility determines that preserving an accident scene or protecting relevant evidence under this rule is incompatible with the lawful demands of other governmental responders, the owner/operator must provide notice to the CSB under paragraph

(d)of this section prior to altering the scene so that the CSB may attempt to resolve the issue, or if advance notice is not possible, document the condition of the site as provided under paragraph

(e)of this section. § 1604.4 Enforcement. Upon a written showing by the IIC that relevant evidence may be altered or destroyed, the IIC may, with the concurrence of the General Counsel, immediately issue a subpoena for such evidence to the owner/operator of the facility. If a person disobeys a subpoena issued by the IIC under this section, the Attorney General, acting on behalf of the CSB, may bring a civil action in a district court of the United States to enforce the subpoena. Instances of any knowing failure to comply with these regulations and/or the express terms contained in any Notice sent out pursuant to these regulations may also be referred to the U.S. Department of Justice, a local United States Attorney, or any State's Attorney General, for investigation and possible enforcement under applicable Federal or State law. [FR Doc. E5-8239 Filed 1-3-06; 8:45 am] BILLING CODE 6350-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 05-3209, Docket No. 02-106, RM-10416 and Docket No. 02-108, RM-10418] Radio Broadcasting Services; Harrisville and Presque Isle, MI AGENCY: Federal Communications Commission. ACTION: Proposed rule, dismissal. SUMMARY: This document dismisses at the request of Petitioner Northern Paul Bunyan Radio Company its pending petitions for rulemaking to allot Channel 227A at Presque Isle, Michigan in MB Docket No. 02-106, RM-10416 and to allot Channel 226A at Harrisville, Michigan in MB Docket No. 02-108, RM-10418. *See* 67 FR 39933, published June 11, 2002. This document also dismisses a counterproposal filed by Northern Michigan Radio, Inc. which proposes *inter alia* to reallot Channel 223C1 from Atlanta, Michigan to Vanderbilt, Michigan, and conflicts with both the proposals for Presque Isle and Harrisville. The counterproposal is defective because it proposes to allot Channel 282C3 at Atlanta, Michigan as a “backfill” replacement for the loss of the community's sole local transmission service. This document therefore terminates the proceedings in MB Docket Nos. 02-106 and 02-108. ADDRESSES: Federal Communications Commission, Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Helen McLean, Media Bureau

(202)418-2738. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's Report and Order, MB Docket Nos. 02-106 and 02-108, adopted December 14, 2005 and released December 16, 2005. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW., Washington, DC. This document may also be purchased from the Commission's duplicating contractors, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or *http://www.BCPIWEB.com.* This document is not subject to the Congressional Review Act. The Commission, is, therefore, not required to submit a copy of this Report and Order to Government Accountability Office, pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A) since this proposed rules are dismissed, herein. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E5-8252 Filed 1-3-06; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 05-3213; MB Docket No. 05-328; RM-10577] Radio Broadcasting Services; Millerton, OK AGENCY: Federal Communications Commission. ACTION: Proposed rule. SUMMARY: The Audio Division seeks comment on a petition filed by Jeraldine Anderson proposing the allotment of Channel 265A at Millerton, Oklahoma, as the community's first local aural transmission service. Channel 265A can be allotted to Millerton in compliance with the Commission's minimum distance separation requirements at city reference coordinates. The reference coordinates for Channel 265A at Millerton are 33-59-09 North Latitude and 95-00-48 West Longitude. DATES: Comments must be filed on or before February 6, 2006, and reply comments on or before February 21, 2006. ADDRESSES: Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve on Petitioner, as follows: Jeraldine Anderson, 1702 Cypress Drive, Irving, Texas 75061. FOR FURTHER INFORMATION CONTACT: Sharon P. McDonald. Smith, Media Bureau,

(202)418-2180. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice of Proposed Rule Making, MB Docket No. 05-328, adopted December 14, 2005, and released December 16, 2005. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center 445 Twelfth Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20054, telephone 1-800-378-3160 or *http://www.BCPIWEB.com* . This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding. Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all *ex parte* contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible *ex parte* contact. For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420. List of Subjects in 47 CFR Part 73 Radio, Radio broadcasting. For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows: PART 73—RADIO BROADCAST SERVICES 1. The authority citation for part 73 continues to read as follows: Authority: 47 U.S.C. 154, 303, 334 and 336. § 73.202 [Amended] 2. Section 73.202(b), the Table of FM Allotments under Oklahoma, is amended by adding Millerton, Channel 265A. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E5-8253 Filed 1-3-06; 8:45 am] BILLING CODE 6712-01-P OFFICE OF MANAGEMENT AND BUDGET Office of Federal Procurement Policy 48 CFR Part 9903 Cost Accounting Standards Board; T&M Contracts for Commercial Items AGENCY: Cost Accounting Standards Board, Office of Federal Procurement Policy, OMB. ACTION: Proposed rule with request for comment. SUMMARY: The Cost Accounting Standards

(CAS)Board is proposing to revise the CAS by providing an exemption for time-and-materials (T&M) and labor-hour

(LH)contracts for the acquisition of commercial items. DATES: Comments upon this proposed rule must be in writing and must be received by March 6, 2006. ADDRESSES: Due to delays in OMB's receipt and processing of mail, respondents are strongly encouraged to submit comments electronically to ensure timely receipt. Electronic comments may be submitted to *casb2@omb.eop.gov.* Please put the full body of your comments in the text of the electronic message and also as an attachment readable in either MS Word or Corel WordPerfect. Please include your name, title, organization, postal address, telephone number, and e-mail address in the text of the message. Comments may also be submitted via facsimile to

(202)395-5105. FOR FURTHER INFORMATION CONTACT: Rein Abel, Director of Research, Cost Accounting Standards Board (telephone: 202-395-1062). SUPPLEMENTARY INFORMATION: A. Background On July 29, 1996, the Board implemented the Federal Acquisition Reform Act

(FARA)by promulgating an interim rule providing an exemption from CAS for contracts for the acquisition of commercial items that are firm fixed price and fixed price with economic price adjustment (except when the adjustment is made on the basis of actual costs). The Board's final rule was implemented on June 6, 1997. At the time the CAS Board implemented this exemption, FAR limited the permissible contract types for the acquisition of commercial items to firm fixed price and fixed price with economic price adjustment. Section 1432 of the National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136, referred to as SARA) amended the Federal Acquisition Streamlining Act

(FASA)to expressly authorize the use of time-and-materials (T&M) and labor-hour

(LH)contracts for the acquisition of certain categories of commercial services under specified conditions. As part of the process to implement this amendment, the Federal Acquisition Regulation

(FAR)Council published an Advance Notice of Proposed Rulemaking (ANRPM) in the **Federal Register** on September 20, 2004 (69 FR 56316) to amend the FAR. The ANPRM requested comments on the impact of applying CAS. Public comments were received from 23 respondents. Eight of those respondents provided comments on the impact of applying CAS. The comments focused on whether the statute requires an exemption from CAS and the value of applying CAS to T&M/LH contracts for commercial items. The FAR Council reviewed the public comments and drafted a proposed rule to amend the FAR. Based on the methodology in the draft proposed FAR rule that will be used to price and reimburse T&M and LH contracts (summarized below), the CAS Board has determined that an exemption from CAS is appropriate: *Pricing.* Under the provisions of SARA and the requirements of the draft proposed FAR rule, T&M and LH contracts for commercial items must be awarded on a competitive basis. In addition, the contracting officer is precluded from obtaining cost or pricing data in accordance with FAR 15.403-1(c)(3). Therefore, the application of CAS, from a pricing standpoint, is similar to a firm fixed-price contract awarded on the basis of competition without submission of certified cost or pricing data. Such firm-fixed price contracts are exempt from CAS under 48 CFR 9903.201-1(b)(6). *Reimbursement.* In regards to cost reimbursement, the draft proposed FAR rule provides for the following: • Reimbursement of direct labor will be on the basis of fixed labor rates in the contract schedule. The fixed labor rates will be established based on competition, since SARA requires award on a competitive basis. • Reimbursement of indirect costs will be at a fixed amount established at the time of contract award. This fixed amount will be part of the price evaluation, and thus is part of the competitive award process. • Materials. If the materials are a commercial item, reimbursement will be at price. If the materials are not a commercial item, reimbursement will be at actual cost. • Other Direct Costs will be reimbursed on the basis of actual costs incurred. Reimbursement is limited to the specific cost elements listed in the contract. • Subcontracts will be reimbursed at either

(a)cost (to the extent the costs are incurred in accordance with the terms and conditions of the subcontract agreement and evidenced by actual payment) or

(b)the fixed labor rates in the contract schedule (if specifically provided for in the contract). Under the draft proposed FAR rule, direct labor and indirect costs are reimbursed on a fixed price basis. Thus, for LH contracts, all reimbursement is on a fixed price basis (based on the number of labor hours expended). For T&M contracts, materials, other direct costs, and subcontract costs may be reimbursed at cost. The preamble to the draft proposed FAR rule indicates that

(a)Most of the material costs are anticipated to be for commercial items reimbursed at price,

(b)the material and other direct costs should be a minor portion of the total contract costs, and

(c)subcontract costs are either reimbursed at cost or at the fixed labor rates in the contract schedule. The Board has concluded that a CAS exemption is appropriate for both T&M and LH contracts for the following reasons:

(a)The pricing is based on adequate competition without the submission of cost data;

(b)For other than subcontracts, reimbursement based on actual cost is anticipated to be very limited;

(c)Reimbursement of subcontracts based on actual costs requires that the costs be

(i)incurred in accordance with the terms and conditions of the subcontract agreement, and

(ii)evidenced by actual payment; and

(d)Reimbursement of subcontracts on other than actual costs will be on a fixed price basis (based on the fixed labor rates in the contract schedule). B. Paperwork Reduction Act The Paperwork Reduction Act, Public Law 96-511, does not apply to this rulemaking, because this rule imposes no paperwork burden on offerors, affected contractors and subcontractors, or members of the public which requires the approval of OMB under 44 U.S.C. 3501, *et seq.* C. Executive Order 12866 and the Regulatory Flexibility Act The economic impact of this rule on contractors and subcontractors is expected to be minor. As a result, the Board has determined this rule is not significant under the provisions of Executive Order 12866, and that a regulatory impact analysis will not be required. Furthermore, this rule will not have a significant impact on a substantial number of small businesses because small businesses are exempt from the application of the Cost Accounting Standards. Therefore, this rule does not require a regulatory flexibility analysis under the Regulatory Flexibility Act of 1980. D. Public Comments Interested persons are invited to participate by submitting data, views or arguments with respect to this proposed rule. All comments must be in writing and submitted to the address indicated in the Addresses section. List of Subjects in 48 CFR Part 9903 Accounting, Government procurement. Joshua B. Bolten, Director. For the reasons set forth in this preamble, chapter 99 of title 48 of the Code of Federal Regulations is proposed to be amended as set forth below: PART 9903—CONTRACT COVERAGE 1. The authority citation for part 9903 is revised to read as follows Authority: Public Law 100-679, 102 Stat 4056, 41 U.S.C. 422. Subpart 9903.2—CAS Program Requirements 2. Section 9903.201-1(b)(6) is revised to read as follows: § 9903.201-1 CAS Applicability.

(b)* * *

(6)Firm fixed-priced, fixed-priced with economic price adjustment (provided that price adjustment is not based on actual costs incurred), time-and-materials, and labor-hour contracts and subcontracts for the acquisition of commercial items. [FR Doc. E5-8237 Filed 1-3-06; 8:45 am] BILLING CODE 3110-01-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List the Northern Mexican Gartersnake as Threatened or Endangered With Critical Habitat AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of 90-day petition finding and initiation of status review. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list the northern Mexican gartersnake, *Thamnophis eques megalops* , as threatened or endangered with critical habitat under the Endangered Species Act of 1973, as amended (Act). The petitioners provided three listing scenarios for consideration by the Service:

(1)Listing the United States population as a Distinct Population Segment (DPS);

(2)listing the species throughout its range in the United States and Mexico based on its range-wide status; or

(3)listing the species throughout its range in the U.S. and Mexico based on its status in the United States. We find the petition has presented substantial information that the northern Mexican gartersnake is a listable entity, and we find that the petition presents substantial scientific and commercial data indicating that listing may be warranted. Therefore, we are initiating a status review to determine if listing this species is warranted. To ensure that the status review is comprehensive, we are soliciting scientific and commercial information regarding this species. Any determinations on critical habitat will be made if and when a listing action is initiated for this species. DATES: The finding announced in this document was made on December 13, 2005. To be considered in the 12-month finding for this petition, comments and information should be submitted to us by March 6, 2006. ADDRESSES: Data, information, comments, or questions concerning this petition and our finding should be submitted to the Field Supervisor, Arizona Ecological Services Field Office, 2321 West Royal Palm Drive, Suite 103, Phoenix, Arizona. The petition, supporting data, and comments will be available for public inspection, by appointment, during normal business hours at the above address. If you wish to comment or provide information, you may submit your comments and materials by any one of the following methods: 1. You may submit written comments and information by mail to: Field Supervisor, Arizona Ecological Services Field Office, 2321 West Royal Palm Drive, Suite 103, Phoenix, Arizona. 2. You may hand-deliver written comments and information to our Field Supervisor, Arizona Ecological Services Field Office, 2321 West Royal Palm Drive, Suite 103, Phoenix, Arizona. 3. You may fax your comments to 602-242-2513. 4. You may send your comments by electronic mail (e-mail) directly to the Service at *MexGsnake@fws.gov* , or to the Federal Rulemaking Portal at *http://www.regulations.gov* . Please include “Attn: northern Mexican gartersnake” in the beginning of your message, and do not use special characters or any form of encryption. Electronic attachments in standard formats (such as .pdf or .doc) are acceptable, but please name the software necessary to open any attachments in formats other than those given above. Also, please include your name and return address in your e-mail message. If you do not receive a confirmation from the system that we have received your e-mail message, please submit your comments in writing using one of the alternate methods described above. In the event that our internet connection is not functional, please submit your comments by the alternate methods mentioned above. FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, Arizona Ecological Services Field Office (telephone 602-242-0210 and facsimile 602-242-2513). SUPPLEMENTARY INFORMATION: Public Information Solicited When we make a finding that substantial information is presented to indicate that listing a species may be warranted, we are required to promptly commence a review of the status of the species. To ensure that the status review is complete and based on the best available scientific and commercial information, we are soliciting information on the northern Mexican gartersnake. We request any additional information, comments, and suggestions from the public, other concerned governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties concerning the status of the northern Mexican gartersnake. We are seeking information regarding the species' historical and current status and distribution, its biology and ecology, ongoing conservation measures for the species and its habitat, and threats to the species and its habitat. If you wish to comment or provide information, you may submit your comments and materials concerning this finding to the Field Supervisor (see ADDRESSES section). Our practice is to make any comments and materials provided, including names and home addresses of respondents, available for public review during regular business hours. Respondents may request that we withhold a respondent's identity, to the extent allowable by law. If you wish us to withhold your name or address, you must state this request prominently at the beginning of your submission. However, we will not consider anonymous comments. To the extent consistent with applicable law, we will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address. Background Section 4(b)(3)(A) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 *et seq.* ) (Act), requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on all information available to us at the time we make the finding. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition, and publish our notice of this finding promptly in the **Federal Register** . Our standard for substantial information within the Code of Federal Regulations

(CFR)with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial information was presented, we are required to promptly commence a review of the status of the species. In making this finding, we relied on information provided by the petitioners and evaluated that information in accordance with 50 CFR 424.14(b). Our process of coming to a 90-day finding under section 4(b)(3)(A) of the Act and § 424.14(b) of our regulations is limited to a determination of whether the information in the petition meets the “substantial information” threshold. We do not conduct additional research at this point, nor do we subject the petition to rigorous critical review. Rather, as the Act and regulations contemplate, in coming to a 90-day finding, we accept the petitioner's sources and characterizations of the information unless we have specific information to the contrary. Our finding considers whether the petition states a reasonable case for listing the species under the Act on its face. Thus, our finding expresses no view as to the ultimate issue of whether the species should be listed. We reach a conclusion on that issue only after a more thorough review of the status of the species. In that review, which will be completed on or by September 15, 2006, we will perform a rigorous, critical analysis of the best available scientific and commercial information, not just the information in the petition. We will ensure that the data used to make our determination as to the status of the species is consistent with the Act and Information Quality Act (44 U.S.C. 3516). Petition On December 19, 2003, we received a petition dated December 15, 2003, requesting that we list the northern Mexican gartersnake, *Thamnophis eques megalops* , as threatened or endangered, and that critical habitat be designated concurrently with the listing. The petition, submitted by the Center for Biological Diversity (hereinafter referred to as the petitioners), was clearly identified as a petition for a listing rule, and contained the names, signatures, and addresses of the requesting parties. Included in the petition was supporting information regarding the species' taxonomy and ecology, historical and current distribution, present status, and potential causes of decline. We acknowledged the receipt of the petition in a letter to Mr. Noah Greenwald, dated March 1, 2004. In that letter, we also advised the petitioners that, due to funding constraints in fiscal year 2004, we would not be able to begin processing the petition in a timely manner. On May 17, 2005, the petitioners filed a complaint for declaratory and injunctive relief, challenging our failure to issue a 90-day finding in response to the petition as required by U.S.C. 1533(b)(3)(A) and (B). In a stipulated settlement agreement, we agreed to submit a 90-day finding to the **Federal Register** by December 16, 2005, and if positive, complete a 12-month finding on or by September 15, 2006 [ *Center for Biological Diversity* v. *Norton* , CV-05-341-TUC-CKJ (D. Ariz)]. The settlement agreement was signed and adopted by the District Court for the District of Arizona on August 22, 2005. This notice constitutes our 90-day finding for the petition to list the northern Mexican gartersnake as threatened or endangered, pursuant to the Court's order. Biology and Distribution The northern Mexican gartersnake may occur with other native gartersnake species and can be difficult to identify in the field. The northern Mexican gartersnake is a medium-sized member of the family Colubridae with a maximum known length of 112 centimeters

(cm)[44 inches (in)]. It ranges in background color from olive to olive-brown to olive-gray. Three stripes run the length of the body, with a yellow stripe down the back that darkens toward the tail. The pale yellow to light-tan lateral stripes distinguish the northern Mexican gartersnake from other gartersnake species because a portion of the lateral stripe is found on the fourth scale row. Paired black spots extend along the dorsolateral fields. A light-colored crescent extends behind the corners of the mouth. The northern Mexican gartersnake is one of ten subspecies currently recognized under *Thamnophis eques* , has the largest historical distribution of these subspecies, and is the only subspecies known to occur in the United States. Robert Kennicott first described this northern subspecies of Mexican gartersnake in 1860 as *Eutenia megalops* from the type locality of Tucson, Arizona (Rosen and Schwalbe 1988). In 1951, Dr. Hobart Smith renamed the subspecies with its current scientific name of *Thamnophis eques megalops* (Rosen and Schwalbe 1988). A summary of taxonomic history can be found in Rosen and Schwalbe (1988). The historical distribution of northern Mexican gartersnake in the United States was constrained largely to Arizona and, to a lesser degree, New Mexico. There have been a number of inventory, monitoring, and/or survey efforts in the United States, most of which occurred in Arizona (which encompasses the vast majority of the historical distribution of northern Mexican gartersnakes in the United States). Fewer survey data were found in the literature for Mexico and New Mexico. In Arizona, the historical distribution once included the Santa Cruz, San Pedro, Colorado, Salt, Agua Fria, Rio Yaqui, and Verde River watersheds and presumably the Gila River watershed based on historically suitable habitat and geographic proximity to formerly extant populations. In New Mexico, the northern Mexican gartersnake was once extant in the upper Gila River watershed in Grant and Hidalgo Counties. In April of 1977, Roger Conant, James S. Jacob, and a group of students counted approximately 100 northern Mexican gartersnakes in and around three small ponds on private land southwest of Mule Creek Village (Degenhardt et al. 1996). This population was considered a stronghold for the species in New Mexico (Degenhardt et al. 1996). Charlie Painter, State Herpetologist for the New Mexico Department of Game and Fish (NMDGF), returned to this location in May 1994 during favorable conditions and found only one specimen (C. Painter, pers. comm., New Mexico Department of Game and Fish, 2005). This represents a major decline in a stronghold population. Mr. Painter stated that he strongly suspects that northern Mexican gartersnakes are currently extirpated from New Mexico based on several factors including limited historical distribution in that State, modification and loss of suitable habitat, nonnative species introductions, and the lack of protections offered to non-listed, but declining native species on private land (all known records of northern Mexican gartersnakes in New Mexico are on private land) (C. Painter, pers. comm., New Mexico Department of Game and Fish, 2005). The current distribution of northern Mexican gartersnakes within the United States is now generally believed to be limited to four geographic areas in Arizona:

(1)Middle/upper Verde River—lower Tonto Creek;

(2)Black River watershed;

(3)upper Santa Cruz/San Pedro watersheds; and,

(4)the San Bernardino National Wildlife Refuge in the upper Rio Yaqui watershed (Fitzgerald 1986; Rosen and Schwalbe 1988; Arizona Game and Fish Department 1996; Rosen et al. 2001; Holycross and Burger 2005). The subspecies is also historically known from the Sierra Madre Occidental and the Mexican Plateau in the Mexican states of Sonora, Chihuahua, Durango, Coahila, Zacatecas, Guanajuato, Nayarit, Hidalgo, Jalisco, San Luis Potosí, Aguascalientes, Tlaxacala, Puebla, México, Veracruz, and Querétaro (Rossman et al. 1996). The northern Mexican gartersnake is considered a native riparian obligate (restricted to riparian areas when not engaged in dispersal behavior for the purposes of genetic emigration); occurring chiefly in the following general habitat types:

(1)Source-area wetlands (e.g., cienegas (mid-elevation wetlands with highly organic, reducing soils), stock tanks (earthen water impoundments), etc.);

(2)large river riparian woodlands and forests; and

(3)streamside gallery forests (as defined by well-developed broadleaf deciduous riparian forests with limited, if any, herbaceous ground cover or dense grass) (Hendrickson and Minckley 1984; Rosen and Schwalbe 1988; Arizona Game and Fish Department 2001). Habitat characteristics preferred by the northern Mexican gartersnake varies based on the type of habitat. For example, in source-area wetlands, dense vegetation consisting of knot grass ( *Paspalum distichum* ), spikerush ( *Eleocharis* ), bulrush ( *Scirpus* ), cattail ( *Typha* ), deergrass ( *Muhlenbergia* ), sacaton ( *Sporobolus* ), Fremont cottonwood ( *Populus fremontii* ), Goodding's willow ( *Salix gooddingii* ), and velvet mesquite ( *Prosopis velutina* ) may be preferred (Rosen and Schwalbe 1988). In small streamside riparian habitat, this snake is often associated with Arizona sycamore ( *Platanus wrightii* ), sugar leaf maple ( *Acer grandidentatum* ), velvet ash ( *Fraxinus velutina* ), Arizona cypress ( *Cupressus arizonica* ), Arizona walnut ( *Juglans major* ), Arizona alder ( *Alnus oblongifolia* ), alligator juniper ( *Juniperus deppeana* ), Rocky Mountain juniper ( *J. scopulorum* ), and a number of oak species ( *Quercus* spp.) (McCranie and Wilson 1986; Cirett-Galan 1996). In riparian woodlands consisting of cottonwood and willow or gallery forests of broadleaf and deciduous species along larger rivers, the northern Mexican gartersnake may be observed in less dense mixed grasses along the bank or in the shallows (Rossman et al. 1996; Rosen and Schwalbe 1988). Within and adjacent to the Sierra Madre Occidental in Mexico, it occurs in general habitat associations described as montane woodland, Chihuahuan desertscrub, mesquite-grassland, and Cordillera Volcánica montane woodland (McCranie and Wilson 1987). The northern Mexican gartersnake is surface active at ambient temperatures ranging from 22° Celsius

(C)to 33° C (71° Fahrenheit

(F)to 91° and forages along the banks of waterbodies feeding primarily upon native fish [e.g., Gila topminnow ( *Poeciliopsis occidentalis occidentalis* ), desert pupfish ( *Cyrpinodon macularius* ), Gila chub ( *Gila intermedia* ), and roundtail chub ( *Gila robusta* )] and adult and larval native ranid frogs [e.g., lowland leopard frog ( *Rana yavapaiensis* ) and Chiricahua leopard frog ( *Rana chiricahuensis* )], but may also supplement its diet with earthworms and vertebrates such as lizards, small rodents, salamanders, and hylid frogs (treefrogs) (Rosen and Schwalbe 1988). An important component of suitable northern Mexican gartersnake habitat is an intact native prey base that is not significantly affected by nonnative, invasive species (Rosen and Schwalbe 1988, 1997; Clarkson and Rorabaugh 1989; Jennings et al. 1992; Holm and Lowe 1995; Fernandez and Rosen 1996; Rosen et al. 2001; Matthews et al. 2002; Holycross and Burger 2005). However, in some populations where the species is present with bullfrogs, adult northern Mexican gartersnakes will prey upon juvenile bullfrogs and/or bullfrog tadpoles (Holycross and Burger 2005). Juvenile northern Mexican gartersnakes may also prey upon nonnative mosquito fish ( *Gambusia affinis* ) (Holycross and Burger 2005). Sexual maturity in male northern Mexican gartersnakes occurs at two years of age and at two to three years of age in females. Northern Mexican gartersnakes are ovoviviparous (eggs develop and hatch within the oviduct of the female). Mating occurs in April and May in their northern distribution followed by the live birth of between 7 and 26 neonates (newly born individuals) (average is 13.6) in July and August (Rosen and Schwalbe 1988). Approximately half of the sexually mature females within a population reproduce in any one season (Rosen and Schwalbe 1988). Previous Federal Actions We placed the northern Mexican gartersnake on the list of candidate species as a Category 2 species in 1988 (50 FR 37958). Category 2 species were those for which existing information indicated that listing was possibly appropriate, but for which substantial supporting biological data to prepare a proposed rule were lacking. In the 1996 Candidate Notice of Review (February 28, 1996; 61 FR 7596), the use of Category 2 candidates was discontinued, and the northern Mexican gartersnake was no longer recognized as a candidate. Discussion We discuss below each of the major assertions made in the petition, organized by the listing factors found in section 4(a)(1) of the Act. Section 4 of the Act and its implementing regulations found at 50 CFR 424 set forth the procedures for adding species to the Federal list of endangered and threatened species. A species may be determined to be an endangered or threatened species if it is threatened by one or more of the five factors described in section 4(a)(1) of the Act and meets either the definition of endangered or threatened pursuant to section 3 of the Act. An endangered species is any species which is in danger of extinction throughout all or a significant portion of its range. A threatened species is any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The five listing factors are:

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

(2)overutilization for commercial, recreational, scientific, or educational purposes;

(3)disease or predation;

(4)the inadequacy of existing regulatory mechanisms; and

(5)other natural or manmade factors affecting its continued existence. The petitioners contend that all five factors are applicable to some degree for the northern Mexican gartersnake, as discussed below. This 90-day finding is not a status assessment of the northern Mexican gartersnake and does not constitute a status review under the Act. The discussion presents information provided in the petition related to the factors used for evaluation of listing pursuant to section 4(a)(1) of the Act for the northern Mexican gartersnake. A. Present or Threatened Destruction, Modification, or Curtailment of the Species' Habitat or Range Geographic Range and Status Information Provided in the Petition The petitioners claim that northern Mexican gartersnake populations in Arizona are in decline and are clearly threatened and reference several reports that provide data on survey efforts for the species. However, the petitioners' state that information on the northern Mexican gartersnakes' population status in New Mexico, and in particular, Mexico is less certain but believed to indicate potential extirpations or declines (Lowe 1985; Stebbins 1985; Rosen et al. 2001; Degenhardt et al. 1996; Howland 2000). In 2000, Rosen et al.

(2001)resurveyed northern Mexican gartersnake populations known to be extant during the early to mid 1980s in southeastern Arizona and included additional information collected from 1993 to 2001. Rosen et al.

(2001)reported their results in terms of increasing, stabilized, or decreasing populations of northern Mexican gartersnake. The primary means used to sample the herpetofauna included various trapping techniques and field searches. Three sites (San Bernardino National Wildlife Refuge, Finley Tank at the Audubon Research Ranch near Elgin, and Scotia Canyon in the Huachuca Mountains) were intensively surveyed with varied results at each site that were discussed by the petitioners and in further detail below. According to the petitioners, the northern Mexican gartersnake was the primary gartersnake species at the San Bernardino National Wildlife Refuge from the 1950s through the 1970s. The species is currently extirpated or near extirpation in this area based on substantial survey effort on the refuge from 1985 to 1989 and again from 1992 to 1999, which noted severe declines (Rosen and Schwalbe 1997; Rosen et al. 2001). Investigators described the decline at the refuge as severe because in 1995, 31 northern Mexican gartersnakes were observed on the refuge at a standardized capture rate of 0.248 captures/day while in 1999, one northern Mexican gartersnake was observed with a standardized capture rate of 0.002 captures/day; a several-fold decline. The decline of the northern Mexican gartersnake on the refuge is largely attributed to catastrophic declines and the ultimate extirpation of a primary prey species, the Chiricahua leopard frog, a federally threatened species (Rosen and Schwalbe 1997; Rosen et al. 2001). The petitioners reference Rosen and Schwalbe

(1997)which also provides a detailed assessment of the status of the northern Mexican gartersnake, as well as other aquatic herpetofauna (reptiles and amphibians) (including bullfrogs and both Chiricahua and lowland leopard frogs) within the San Bernardino National Wildlife Refuge. Their work summarizes many projects which commenced in 1985 and focused on

(1)the impacts of bullfrog invasion on the northern Mexican gartersnake;

(2)the effectiveness of bullfrog control measures; and

(3)the effectiveness of leopard frog recovery efforts in the San Bernardino Valley. The primary means used to sample the herpetofauna included various trapping techniques and field searches. Rosen and Schwalbe

(1997)noted the northern Mexican gartersnake as the primary historical gartersnake species in the San Bernardino National Wildlife Refuge, but sampling results in the mid-1980s indicated the species as “unusually uncommon.” Observations of northern Mexican gartersnake populations in 1985 and 1986 in the San Bernardino National Wildlife Refuge indicated that recruitment was severely hampered due to the significantly limited number of specimens observed in the juvenile size classes. The investigators attributed this observation to bullfrog predation as most adult specimens captured displayed several scars from repeated apparent predation attempts by bullfrogs (Rosen and Schwalbe 1997). Bullfrog predation can be discerned by such tail-scaring. Native predators generally consume the entire animal whereas bullfrogs will often attempt to capture prey items larger than they can subdue and physically ingest, which results in the scaring observed in northern Mexican gartersnakes on the refuge and other areas where they occur with bullfrogs. Similar observations were made by Holm and Lowe

(1995)in Scotia Canyon, Huachuca Mountains. The petitioners reference Rosen and Schwalbe

(1997)in stating that declines of northern Mexican gartersnakes have been noted in the San Bernardino Valley since before formal investigations commenced at the San Bernardino National Wildlife Refuge. Cumulative data of gartersnake captures (including both the northern Mexican gartersnake and the Marcy's checkered gartersnake ( *Thamnophis marcianus marcianus* )) in the San Bernardino National Wildlife Refuge indicated a 39 percent decline in northern Mexican gartersnake capture rate per unit effort between the 1980s and the 1990s. These data were derived from aquatic trapping of northern Mexican gartersnake which provided Rosen and Schwalbe

(1997)with substantial annual samples from 1993 to 1997. Rosen and Schwalbe

(1997)reasoned this decline could be attributed to natural response to persistent drought conditions but that it may have “masked a critical, rapid decline” in northern Mexican gartersnake populations of southeastern Arizona. The qualitative and quantitative data generated from the exhaustive research conducted on this species in this area clearly confirms the species is nearing extirpation from the San Bernardino National Wildlife Refuge, a former stronghold (Rosen and Schwalbe 1997; Rosen et al. 2001). Surveys at Finley Tank located on the Audubon Research Ranch near Elgin, Arizona, that occurred during the period from 1985 to 1988 and again in 2000 were cited by petitioners. Chiricahua leopard frogs were noted as abundant in the 1985 and 1986 field seasons but have not been observed there since 1988. The petitioners cited an observation by Dr. Phil Rosen found in Rosen et al.

(2001)where he explained, “At sites where leopard frogs are absent, often apparently due to introduced centrarchid fish [especially largemouth bass ( *Micropterus salmoides* ) and green sunfish ( *Lepomis cyanellus* )] as at Babocamari (Cienega), northern Mexican garter snakes have become rare prior to the arrival of the bullfrog. With only fish to eat, growth is probably markedly reduced, and further, at centrarchid sites there are generally few small-to medium-sized fish, of edible size for most gartersnakes. In that scenario, gartersnake reproduction is likely to be reduced, and juvenile growth slowed, as is consistent with the low densities and generally smaller snakes seen at the Babocamari.” The decline of native leopard frogs from Finley Tank, possibly exacerbated by the effect of recent drought years on the habitat within and around Finley Tank, was, according to petitioners, the principle factor which led to the precipitous decline in northern Mexican gartersnakes since 1988 at this location. The last intensively resurveyed area referenced by the petitioners and discussed in Rosen et al.

(2001)was Scotia Canyon in the Huachuca Mountains of southeastern Arizona. A comparison of survey data from Holm and Lowe

(1995)suggests a possible decline of northern Mexican gartersnake populations in this area based on survey data from 1980 to 1982, with low capture rates in 1993, and even lower capture rates in 2000. Rosen et al.

(2001)noted that bullfrogs were first detected in Scotia Canyon in 1989, and by 1992 bullfrogs had overtaken the canyon. As referenced in the petition, this bullfrog invasion affected the northern Mexican gartersnake age-class distribution in Scotia Canyon to one favoring older adults (too large to be eaten by bullfrogs) with little, if any, recruitment in the juvenile age-class due to bullfrog predation on neonatal and juvenile gartersnakes (Holm and Lowe 1995; Rosen et al. 2001). Rosen et al.

(2001)commented that the data were too sparse to confirm that extirpation of northern Mexican gartersnakes from Scotia Canyon was inevitable, but that northern Mexican gartersnakes may still persist there as a population vulnerable to extirpation. The petitioners also reference Holm and Lowe

(1995)who also conducted a herpetofaunal assessment in Scotia Canyon in 1993, using techniques such as active searching during optimal conditions and trapping using drift fences (barriers at ground level that direct the movements of small vertebrate species into buried containers adjacent to the barrier) with minnow traps. The purpose of this assessment was to compare the 1993 herpetofaunal community to the 1980 through 1982 results in the same area. As discussed in Rosen et al. (2001), Holm and Lowe

(1995)noted bullfrogs to have increased markedly over the time between surveys. Native ranid frogs were uncommon during the surveys during the early 1980s and were declared locally extirpated from the study area in 1993. Of 39 northern Mexican gartersnakes captured in 1993, 7 were adults, 2 were yearlings, and 30 were young of the year; as compared to 6 yearlings and 2 small adults captured in 1980 to 1982. Holm and Lowe

(1995)suggested such a population structure of northern Mexican gartersnakes indicated that while adults are capable of living longer and achieving significant size, recruitment is low due to high mortality of juvenile snakes from bullfrog predation. Their finding was supported by 93 percent of northern Mexican gartersnakes that were observed with broken tails likely caused by bullfrog predation attempts based upon the predator community in this area (Holm and Lowe 1995). Four southeastern Arizona cienega habitats were identified by the petitioners as being resurveyed and subsequently discussed in Rosen et al. (2001): the Arivaca Cienega, the Babocomari Cienega, Cienega Creek at Empire-Cienega Ranch, and Lower Cienega Creek at Cienega Creek County Preserve. The Arivaca Cienega was a historical locality for both the northern Mexican gartersnake and the Chiricahua leopard frog although neither species has been found at this location since 1980 (Rosen and Schwalbe 1988; Rosen et al. 2001). Arivaca Cienega was surveyed on June 13, 1985, and the authors recorded that bullfrogs were “extremely abundant” and grazing pressure was heavy with over 500 cattle grazing in the habitat (Rosen and Schwalbe 1988). This locality was again sampled in 1994 and 2000 with extensive trapping and survey effort which yielded a single northern Mexican gartersnake (Rosen et al. 2001). Rosen et al.

(2001)commented that the northern Mexican gartersnake population of the Arivaca Cienega likely succumbed to the effects of grazing and a massive bullfrog population, but that the single northern Mexican gartersnake found in 2000 indicated the “tenacity of a species that long ago apparently became rare in the area.” A herpetologist surveyed the Babocamari Cienega in June of 1958 and noted that northern Mexican gartersnakes, lowland leopard frogs, and “southern-form” (Chiricahua) leopard frogs were extremely abundant (Rosen and Schwalbe 1988; Rosen *et al.* 2001). Some 27 years later in 1985, research herpetologists again visited this location only to find four northern Mexican gartersnakes and no leopard frogs (Rosen *et al.* 2001). Surveys that occurred in 2000 did not find either species (Rosen *et al.* 2001). Babocamari Cienega was overtaken by black bullheads ( *Ameiurus melas* ) and largemouth bass ( *Micropterus salmoides* ) between the late 1950s and the mid-1980s (Rosen and Schwalbe 1988). Rosen *et al.*

(2001)theorize that competition for prey and direct predation from nonnative fish were involved in the decline of northern Mexican gartersnakes and leopard frogs at Babocamari Cienega. The remaining two cienegas identified by the petitioners and addressed by Rosen *et al.*

(2001)are both associated with Cienega Creek in Santa Cruz and Pima counties of Arizona. The first, a former stronghold for northern Mexican gartersnakes, was Cienega Creek at Empire-Cienega Ranch which was considered the “most natural cienega remaining in southern Arizona that supports a large and dense population of Gila topminnow” (Rosen *et al.* 2001). Aquatic habitat parameters at this location prevented investigators from setting traps per standard protocols, which indirectly placed greater emphasis, and less certainty, on hand-collection of northern Mexican gartersnakes. Regardless, three adult northern Mexican gartersnakes were captured by hand at this location: two in 1986 and one in 2000. While still extant, both northern Mexican gartersnakes and leopard frogs have declined precipitously from this area and bullfrogs have successfully invaded. The last of the cienega habitats that was specifically investigated by Rosen *et al.*

(2001)and identified by the petitioners was Lower Cienega Creek at Cienega Creek County Preserve. Rosen *et al.*

(2001)states that this cienega was historically lush with aquatic and emergent vegetation. Overgrazing during the early and mid-1980s denuded much of the area's vegetation and resulted in significant erosion evidenced by the downcutting of stream banks, in some cases in excess of 4.6 meters (15 feet) deep. Lowland leopard frogs have nonetheless remained extant through 2001 (Rosen *et al.* 2001). According to the petitioners, the cienega was purchased by Pima County in the 1990s and grazing has been prohibited on-site since that time. Subsequent trips to this area since the change in ownership have revealed a significant improvement in habitat characteristics. By 1998, the first northern Mexican gartersnake was observed on the new Cienega Creek preserve and has been occasionally observed there since (Rosen *et al.* 2001). Rosen *et al.* (2001), in acknowledgement of management objectives for this area, the potential for habitat regeneration and persistence, and its influence on Cienega Creek as a whole, stated that Cienega Creek “appears to have the highest potential of any site in the U.S. for preservation of the (northern) Mexican gartersnake.” According to the surveyors, the many sites in southeastern Arizona resurveyed by Rosen *et al.*

(2001)since the 1980s yielded mixed results. Populations possibly increased at 1 site (lower Cienega Creek), were possibly stable at 2 (lower San Raphael Valley, Arivaca), were negative at 14 [Empire-Cienega Creek, Babocomari, Bog Hole, O'Donnell Creek, Turkey Creek (Canelo), Post Canyon, Scotia Canyon, Lewis Springs (San Pedro River), San Pedro River near Highway 90, Barchas Ranch Pond (Huachuca Mountain bajada), Heron Spring, Sharp Spring, Elgin-Sonoita windmill well site, and Upper 13 Reservoir (San Raphael Valley)], and showed major, demonstrable declines at 2 sites (San Bernardino National Wildlife Refuge and Finley Tank). No confirmed locality extirpations of northern Mexican gartersnake in southeastern Arizona were documented in Rosen *et al.* (2001). Habitat Information Provided in the Petition The petitioners state that northern Mexican gartersnake habitat is threatened by a variety of factors such as livestock grazing, water withdrawal, streambed modification, dams and dam operation, groundwater pumping, recreation, mining, encroaching urban development, pollution, woodcutting, cultural impacts, and climate change (Hendrickson and Minckley 1984; Szaro *et al.* 1985; Lowe 1985; Rosen and Schwalbe 1988; and Rosen *et al.* 2001). The petitioners did not provide substantial information that addresses such threats to northern Mexican gartersnake habitat such as woodcutting, pollution, cultural impacts, mining, and recreation but cited Lowe (1985), which discusses how such activities have led to the extirpations of riparian reptile and amphibian populations, and in some cases, communities in specific geographic areas. The petitioners specifically identify the loss of and continuing threats to wetland and cienega habitats and reiterate their importance to this particular gartersnake subspecies (Hendrickson and Minckley 1984; Lowe 1985). Hendrickson and Minckley

(1984)state that cienegas habitats are an aquatic climax community based on their data review. Many of these unique habitats of the southwestern United States, and Arizona in particular, have been lost in the past century to streambed modification, livestock grazing, cultural impacts, stream flow stabilization by upstream dams, channelization, and stream flow reduction from groundwater pumping and diversions (Hendrickson and Minckley 1984). Many sub-basins where cienegas have been severely modified or lost entirely overlap, wholly or partially, the historical distribution of the northern Mexican gartersnake including the San Simon, Sulphur Springs, San Pedro, and Santa Cruz valleys of southeastern and south-central Arizona. The San Simon Valley possessed several natural cienega habitats with “luxuriant vegetation” prior to 1885 and was used as a watering stop for pioneers, military, and surveying expeditions (Hendrickson and Minckley 1984). In the subsequent decades, the disappearance of grasses and commencement of severe erosion were the result of heavy grazing pressure by large herds of cattle as well as the effects from wagon trails that paralleled arroyos, occasionally crossed them, and often required stream bank modification (Hendrickson and Minckley 1984). Today, only the artificially-maintained San Simon Cienega exists in this valley. Similar accounts of past conditions, adverse effects from historical anthropogenic activities, and subsequent reduction in the extent and quality of cienega habitats in the remaining valleys are also provided in Hendrickson and Minckley (1984). The regional, ecological ramifications of future climate change were noted by the petitioners as a significant threat to the northern Mexican gartersnake habitat. Specifically, the petitioners restated findings discussed in the Final Report of the Southwest Regional Climate Change Symposium and Workshop that occurred in September 1997. Those findings indicated that the future climate in the American southwest may include decreases in summer and winter precipitation and an increase of up to 4 °C (7 °F) in average temperature. The petitioners claim that such changes in weather patterns and climactic conditions will result in more variability in flows that could compromise perennial and intermittent streams. The petitioners also contend that northern Mexican gartersnake populations are vulnerable to local extirpation from the effects of livestock grazing within and adjacent to stock tanks, cienegas, and riparian areas (Rosen and Schwalbe 1988). Specifically, the loss of bank-side vegetation removes an essential habitat component for such behaviors as foraging and escaping predation. Once a northern Mexican gartersnake population has been extirpated, Rosen and Schwalbe

(1988)state that unassisted recolonization of extirpated habitat is often precluded because it is either isolated between lengthy dewatered reaches of intermittent streams or not available to suitable overland routes of movement for an aquatic habitat specialist. The petitioners cite Rosen and Schwalbe

(1988)which provides an example of where a known (as of 1983) northern Mexican gartersnake population was extirpated in 1984 in Little Ash Creek of the upper Agua Fria watershed, potentially due to effects of overgrazing the stream banks and emergent vegetation. A survey of the area in April 1984 produced not a single specimen, and the authors noted severe overgrazing that had removed virtually all the cover used by northern Mexican gartersnakes in years prior. In August of the following year, the area was resurveyed. Rosen and Schwalbe

(1988)noted that livestock had been removed from the area and that the vegetation had regrown to become suitable for northern Mexican gartersnake, yet an intensive survey again yielded no specimens. The petitioners note that stock tanks used in livestock management also experience intentional or unintentional introductions of nonnative species of fish, amphibians, and crayfish by anglers and private landowners (Rosen et al. 2001). The alteration of habitat, such as bank-side vegetation removal and degradation, around stock tanks, may also favor nonnative predators as a secondary effect from livestock grazing and a threat to northern Mexican gartersnake (Rosen and Schwalbe 1988). Alternatively, well-managed stock tanks can provide habitat suitable for occupation of the northern Mexican gartersnake, both structurally and in terms of its prey base, especially when the tank remains devoid of nonnative species while supporting native prey species (Rosen and Schwalbe 1988). The petitioners discuss how Szaro et al.

(1985)assessed the effects of grazing on a similar species of gartersnake, the wandering (terrestrial) gartersnake ( *Thamnophis elegans vagrans* ). The assessment compared wandering (terrestrial) gartersnake populations in both grazed and ungrazed portions of the same stream. Results indicated that snake abundance and biomass were significantly higher in ungrazed habitat with a five-fold difference in number of snakes captured, despite the difficulties of observing snakes in dense, complex habitat (Szaro et al. 1985). Szaro et al.

(1985)also noted the importance of riparian vegetation in thermoregulation, foraging, and predation-avoidance behaviors. The petitioners claim that the northern Mexican gartersnake continues to be impacted by on-going livestock operations and provided specific reports of adverse effects to northern Mexican gartersnake habitat from livestock grazing on public and private lands in southeastern Arizona where the species is thought to be extant (Rosen et al. 2001). Lastly, the historical and potential future effects to northern Mexican gartersnake habitat from human population growth and subsequent water needs were discussed by the petitioners. Specifically, once-perennial extensive reaches of historical habitat for the northern Mexican gartersnake along the San Pedro and Santa Cruz rivers have been lost to the effects of groundwater pumping in response to increasing human populations and ensuing urbanization and development within the region. The petitioners also express concern for extant populations of northern Mexican gartersnake in the Arivaca Cienega and upper Verde River because of projected population growth, urbanization, and development in those areas and evidence of adverse effects to the water supply of these waterbodies due to increasing numbers of regional groundwater wells required to support such growth. Summary of Habitat Threats and Evaluation of Information in the Petition The petitioners have provided substantial scientific information that a variety of anthropogenic activities and other factors that affect the habitat of northern Mexican gartersnake. B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes Information Provided in the Petition The petitioners state that lawful or unlawful field collecting of northern Mexican gartersnakes has not historically been a significant threat to the species. However, the petitioners cite that illegal field collecting may significantly impact small isolated populations, especially if reproductive females are removed from the population (Painter 2000). The northern Mexican gartersnake may not be collected without special authorization by the AGFD or the NMDGF. Specific discussion of the regulatory protections for the northern Mexican gartersnake is provided in Section D “Inadequacy of Existing Regulatory Mechanisms” below. Evaluation of Information in the Petition Since collection of the species is not known to be a major threat, the petitioners did not argue that field collection of the species for commercial, recreational, scientific, or educational purposes has contributed significantly to the current status of the northern Mexican gartersnake. However, the petitioners did provide a rational argument that small, isolated populations may be particularly vulnerable to extirpation from the future illegal collection of reproductive females. C. Disease and Predation Information Provided in the Petition and Service Files The petitioners acknowledge that disease has not been a direct cause for population decline of the northern Mexican gartersnake. Based on our information, while disease has not been documented as a specific threat to northern Mexican gartersnake in the United States or Mexico, disease and nonnative parasites have been implicated in the decline of its native prey species. The chytrid fungus outbreak has been identified as a chief causative agent in the significant declines of many of the native ranid frog species and regional concerns exist for the native fish community due to nonnative parasites such as the Asian tapeworm ( *Bothriocephalus achelognathi* ) in southeastern Arizona (Rosen and Schwalbe 1997; Morell 1999; Sredl and Caldwell 2000; Hale 2001; Bradley et al. 2002). The petitioners discussed the threats from nonnative species invasions to northern Mexican gartersnakes' functional prey base. The petitioners indicated that riparian communities in Arizona have been significantly impacted by a shift in species composition, from being historically dominated by native fauna to being increasingly impacted by an expanding assemblage of nonnative species (Rosen and Schwalbe 1988, 1995, 1996, 1997; Holm and Lowe 1995; Degenhardt et al. 1996; Fernandez and Rosen 1996; Rosen et al. 2001). The petitioners referenced research that suggested that a decline of native prey species resulting from the replacement with nonnative species has a significant adverse effect on northern Mexican gartersnakes (Rosen and Schwalbe 1988, 1995, 1996, 1997; Holm and Lowe 1995; Degenhardt et al. 1996; Rosen et al. 2001). Subsequently, the status of primary native prey species for northern Mexican gartersnake is declining (Rosen and Schwalbe 1988, 1995, 1996, 1997; Holm and Lowe 1995; Degenhardt et al. 1996; Fernandez and Rosen 1996; Rosen et al. 2001). The petitioners identified several species as primary prey species for the northern Mexican gartersnake that had special Federal or state status. For example, the lowland leopard frog has been extirpated from New Mexico and from its former distribution in the lower Gila and Colorado rivers, and is considered Wildlife of Special Concern by the Arizona Game and Fish Department (AGFD). The Chiricahua leopard frog was listed as threatened without critical habitat under the Act on June 13, 2002 (67 FR 40790). The Gila chub was listed as endangered under the Act on November 2, 2005 (70 FR 66663). The Gila topminnow was listed as endangered under the Act on March 11, 1967 (32 FR 4001). The roundtail and headwater chubs were petitioned for listing as threatened or endangered under the Act, and we published a substantial 90-day finding on the petition for both species on July 12, 2005 (70 FR 39981) indicating that the petition provided substantial information for us to initiate a status review for the two species. Additionally, the roundtail chub is listed as threatened by the State of Arizona. The decline of many gartersnake prey species may be tied to predation by and competition with nonnative invaders; namely bullfrogs, crayfish, and nonnative fish (Rosen and Schwalbe 1988; Holm and Lowe 1995; Rosen et al. 2001). Petitioners state that the northern Mexican gartersnake is particularly vulnerable to a loss in native prey species (Rosen and Schwalbe 1988). Rosen et al.

(2001)examined this issue in greater detail and proposed two plausible explanations:

(1)The species is reluctant to increase foraging efforts at the risk of increased predation; and

(2)the species needs substantial food regularly to maintain its weight and health. If forced to forage more often for smaller prey items, a reduction in growth and reproductive rates may likely result (Rosen et al. 2001). Direct observations of predation of northern Mexican gartersnake by native species are not well documented in the literature; however, several species of native fauna opportunistically take other native individuals when available (Rosen and Schwalbe 1988). Some examples of native predators on the northern Mexican gartersnake may include birds of prey, other snakes (kingsnakes ( *Lampropeltis sp.* ), whipsnakes ( *Masticophus sp.* ), etc.), wading birds, raccoons ( *Procyon lotor* ), skunks ( *Mephitis sp.* ), and coyotes ( *Canus latrans* ) (Rosen and Schwalbe 1988). The scientific community does not currently believe these native predators are responsible for the historical decline of northern Mexican gartersnake as all these species collectively evolved as a native biological community. Alternatively, the petitioners note that nonnative predation threats have been and continue to be a serious factor in the decline of the northern Mexican gartersnake from both effects to the species itself and to its primary prey base. Many nonnative fishes have been introduced into northern Mexican gartersnake habitats, such as bullhead, green sunfish, and largemouth bass (Rosen and Schwalbe 1988). Rosen et al.

(2001)noted the three most damaging nonnative predators to the northern Mexican gartersnake and its prey base in southern Arizona were bullfrogs, crayfish, and the green sunfish. The petitioners claim that, of the various nonnative predators that have been introduced to post-settlement Arizona, the bullfrog appears to be the most detrimental to the northern Mexican gartersnake (Rosen and Schwalbe 1988, 1995, 1996; Holm and Lowe 1995; Rosen et al. 2001). Bullfrogs act as competitors to the northern Mexican gartersnake by sharing prey items such as frogs, fish, lizards, birds, and even mammals (Rosen and Schwalbe 1995). Bullfrogs are particularly damaging to and persistent in native riparian communities because adult bullfrogs are cannibalistic and larval bullfrogs can be sustained by grazing on aquatic vegetation, which means that a population of adult bullfrogs can sustain itself even when the native vertebrate prey base has been extirpated by the species (Rosen and Schwalbe 1995). The petitioners referenced documentation that discussed scientists and landowners having directly and indirectly observed bullfrogs eating northern Mexican gartersnakes in the juvenile and occasionally sub-adult size classes (Rosen and Schwalbe 1988, 1995, 1996; Holm and Lowe 1995; Rosen et al. 2001). A well-circulated photograph of an adult bullfrog in the process of consuming an adult or subadult northern Mexican gartersnake at Parker Canyon Lake, Cochise County, Arizona, taken by John Carr in 1964, provides photographic documentation of bullfrog predation (Rosen and Schwalbe 1988, 1995). The petitioners referenced a common observation in northern Mexican gartersnake populations that co-occur with bullfrogs is a preponderance of large, mature adult snakes with conspicuously low numbers of individuals in the neonate and juvenile age size classes due to bullfrogs eating young small snakes, indicating low recruitment (reproduction and survival of young) (Rosen and Schwalbe 1988; Holm and Lowe 1995). The petitioners contend that bullfrogs that are unable to capture, subdue, and consume northern Mexican gartersnakes continue to maintain persistent predation pressure on individuals. Signs of attempted predation on northern Mexican gartersnakes can be readily observed in the field by examining the tail region of individual northern Mexican gartersnakes (Holm and Lowe 1995; Rosen and Schwalbe 1996). Rosen and Schwalbe

(1988)discuss such observations from the San Bernardino National Wildlife Refuge where 78 percent of specimens observed had broken tails with a “soft and club-like” terminus, instead of a long, fine point, which suggests repeated injury (multiple predation attempts). Rosen and Schwalbe

(1988)also noted bleeding from this region by gravid females when palpated for egg counts resulting from these “squeeze-type” of injuries inflicted by adult bullfrogs. Holm and Lowe

(1995)observed that 89 percent of captured northern Mexican gartersnakes possessed similar tail injuries during survey work in Scotia Canyon in 1993, indicating heavy predation from abundant bullfrogs occurring there as well. These observations made by researchers and referenced by the petitioners indicate that, while a sub-adult or adult northern Mexican gartersnake may survive an individual predation attempt from a bullfrog while incurring tail damage, secondary effects from infection of the wound can result in mortality of individuals (Rosen et al. 1995). Smaller snakes are swallowed whole by bullfrogs. The petitioners discuss specific research and field experimentation that has been dedicated to understanding the effects of bullfrog predation on the northern Mexican gartersnake and its prey base in southeastern Arizona, and possible methods for bullfrog eradication (Rosen and Schwalbe 1988, 1997; Holm and Lowe 1995; Rosen et al. 2001). Specifically, northern Mexican gartersnake and Chiricahua leopard frog (prey for the gartersnake) populations were repeatedly surveyed from 1986 through 1997 at locations on the San Bernardino National Wildlife Refuge that suffered from various degrees of bullfrog invasion. Survey sites ranged from an entirely native herpetofaunal community to one dominated by bullfrogs of various age classes. The petitioners reference experimentation with bullfrog removal protocols was conducted at various sites on the San Bernardino National Wildlife Refuge in addition to a control site with similar habitat on the Buenos Aires National Wildlife Refuge with no bullfrog removal (Rosen and Schwalbe 1997). Removal protocols employed during this study (the extensive removal of adult bullfrogs) resulted in “remarkable blooms” in younger age-class bullfrogs where removal efforts were intensive (Rosen and Schwalbe 1997). Evidence from dissection samples of young adult and sub-adult bullfrogs indicated that these age-classes readily prey upon younger bullfrogs [4.25 inches (109 mm) snout-vent length] as well as juvenile gartersnakes, which suggests that the selective removal of large adults (favoring the young adult and sub-adult age classes) may indirectly lead to increased predation of leopard frogs and juvenile gartersnakes (Rosen and Schwalbe 1997). Consequently, this strategy was viewed as being potentially “self-defeating” and “counter-productive” but worthy of further investigation (Rosen and Schwalbe 1997). Both leopard frog and northern Mexican gartersnake populations at various locales on the San Bernardino National Wildlife Refuge, where bullfrogs have invaded, were notably affected by nonnative predation (Rosen and Schwalbe 1997). Rosen and Schwalbe

(1997)also indicated that northern Mexican gartersnakes are precariously close to extirpation from that area. The petitioners state that Rosen et al.

(2001)concluded that the presence and expansion of nonnative predators (mainly bullfrogs, crayfish, and green sunfish) continue to be the primary causes of decline in northern Mexican gartersnake populations in southeastern Arizona due to their deleterious effects to the northern Mexican gartersnake and its prey populations. Specifically, Rosen et al.

(2001)identified the expansion of the bullfrog into the Sonoita Grasslands and to the threshold of the Canelo Hills in the upper Santa Cruz River watershed, and the expansion of crayfish into Lewis Springs area of the upper San Pedro River watershed (these areas comprise one of the remaining four, disjunct, geographic areas in the United States where the species remains extant), as particularly threatening to the northern Mexican gartersnake because these nonnative species have proven difficult, if not impossible, to eradicate once established in complex, inter-connected habitats as discussed below. The petitioners reference Rosen and Schwalbe

(1997)who state that effective bullfrog and nonnative fish removal is possible in simple systems that can be manipulated, such as stock tanks; however, it can be expensive and specially-designed fencing is likely needed to prevent reinvasion. No methods are available to effectively remove bullfrogs or crayfish from lotic (moving water), or complex inter-connected systems. The petitioners references indicate that the inability of land managers to effectively address the invasion of nonnative species in such habitats highlights the particularly serious nature of this specific threat. While potential threats from human land use activities can usually be lessened or removed completely with adjustments to land management practices, the concern for the apparent irreversibility of nonnative species invasions becomes paramount. While northern Mexican gartersnake populations can be significantly affected by bullfrog introductions, the petitioners contend they can also be adversely affected by disturbances in the fish community caused by *nonnative fish introductions (Rosen* et al. 2001). The observations of the northern Mexican gartersnake populations and individual growth trends made by Dr. Rosen at Finley Tank prior to the arrival of the exotic bullfrog provides insight on the effects of nonnative fish invasions and the potential nutritional ramifications of a fish-only diet in a species that normally has a varied diet which is largely supported by amphibian prey items (Rosen et al. 2001). The more energy that is expended in foraging, coupled by the reduced number of small to medium-sized fish available in low densities, leads to nutritional deficiencies for both growth and reproduction because energy is instead allocated to maintenance and the increased energy costs of intense foraging activity (Rosen et al. 2001). Evaluation of Information in the Petition The petitioners have provided substantial scientific information that effects of nonnative predation directly on northern Mexican gartersnake and indirectly on its prey base have had negative implications for its status and continue to threaten the species. D. Inadequacy of Existing Regulatory Mechanisms Information Provided in the Petition The petitioners contend that existing regulatory mechanisms, at both the State and Federal levels, have failed to cease or reverse the decline of the northern Mexican gartersnake. The petitioners identified the Service, AGFD, NMDGF, U.S. Forest Service, and the U.S. Bureau of Land Management as agencies who share a responsibility to protect the northern Mexican gartersnake either via jurisdictional directive or through land-management decisions. At this time, northern Mexican gartersnake is considered State Endangered in New Mexico and take is prohibited without a scientific collecting permit issued by the NMDGF as per New Mexico Statutory Authority

(NMSA)17-2-41.C and New Mexico Administrative Code

(NMAC)19.33.6. However, while the NMDGF can issue monetary penalties for illegal take, only recommendations are afforded with respect to actions that result in destruction or modification of habitat (NMSA 17-2-41.C and NMAC 19.33.6). In the December 2003 petition, the petitioners state that the AGFD allows for the collection of up to four northern Mexican gartersnakes per person per year as specified in Commission Order Number 43 (Arizona Game and Fish Department 2001). However, according to our information, in 2005, the AGFD amended Commission Order Number 43, which closed the season on northern Mexican gartersnakes. Take of northern Mexican gartersnakes is no longer permitted in Arizona without issuance of a scientific collecting permit as per Arizona Administrative Code R12-4-401 et seq. While the AGFD can seek criminal or civil penalties for illegal take of northern Mexican gartersnakes, only recommendations are afforded with respect to actions that result in destruction or modification of the northern Mexican gartersnakes' habitat. The northern Mexican gartersnake is considered a “Candidate Species” in the AGFD's draft Wildlife of Special Concern in Arizona

(WSCA)(Arizona Game and Fish Department 1996). A “Candidate Species” is one “whose threats are known or suspected but for which substantial population declines from historical levels have not been documented (though they appear to have occurred)” (Arizona Game and Fish Department 1996). The purpose of the WSCA list is to provide guidance in habitat management implemented by land-management agencies. No specific conservation actions are mandated or otherwise afforded under this designation. The petitioners also claimed that neither agency has mandated recovery goals for the northern Mexican gartersnake, nor does either State have conservation agreements for this species. The petitioners provided an assessment of the northern Mexican gartersnakes' legal status in Mexico, all subspecies under *Thamnophis eques* are listed as “Amenazadas,” or Threatened, in the species” southern distribution in Mexico by the Secretaria de Medio Ambiente y Recursos Naturales (Secretaria de Medio Ambiente y Recursos Naturales 2003). This legal distinction means that the species is in danger of disappearance in the short- or medium-term future from the destruction and modification of its habitat and/or from the effects of shrinking population sizes (SEMARNAT 2001 [NOM-059-ECOL-2001]). This designation prohibits taking of the species, unless specifically permitted, as well as activities that intentionally destroy or adversely modify its habitat (SEMARNAT 2000 [LGVS] and 2001 [NOM-059-ECOL-2001]). Additionally, in 1988, the Mexican Government passed a regulation that is similar to the National Environmental Policy Act of the United States. This Mexican regulation requires an environmental assessment of private or government actions that may affect wildlife and/or their habitat (SEMARNAT 1988 [LGEEPA])). The U.S. Bureau of Land Management considers the northern Mexican gartersnake as a “Special Status Species” and agency biologists actively attempt to identify gartersnakes incidentally observed during fieldwork for their records (L. Young, U.S. Bureau of Land Management, pers. comm., 2005). Otherwise, no specific protection or land-management consideration is afforded to the species on U.S. Bureau of Land Management lands. The U.S. Forest Service does not include northern Mexican gartersnake on their “Management Indicator Species List” but it is included on the “Regional Forester's Sensitive Species List”. This means that northern Mexican gartersnakes are “considered” in land management decisions, and individual U.S. Forest Service biologists may opportunistically capture and identify the gartersnakes observed incidentally in the field for their records, but are not required to do so. The petitioners claim that management under the U.S. Forest Service does not adequately protect the northern Mexican gartersnake from on-going threats. For example, the petition states that no particular management consideration was given to the extant populations of northern Mexican gartersnake on the actively-used Dukuesne and Lone Mountain grazing allotments on the Coronado National Forest where cattle are allowed direct access to northern Mexican gartersnake habitat. According to information presented in the Petition, the vast majority of extant populations of northern Mexican gartersnake in the United States occur on U.S. Bureau of Land Management and U.S. Forest Service managed lands, yet the petitioners contend that neither the U.S. Bureau of Land Management or the U.S. Forest Service have management plans for the northern Mexican gartersnake. Riparian species represent a unique community in Arizona and approximately 50 percent of federally listed species that are native to Arizona are riparian or aquatic species. The petitioners noted, as previously mentioned, several prey species of the northern Mexican gartersnake that had special legal status. Specifically, the petitioners named four primary prey species for the northern Mexican gartersnake, the Chiricahua leopard frog, Gila topminnow, Gila chub, and roundtail chub are federally listed or have been petitioned for listing (i.e., roundtail chub). Other listed or proposed riparian species, or their proposed or designated critical habitat, overlap the current or historical distribution of the northern Mexican gartersnake. However, the petitioners contend that, despite secondary protections that may be afforded to the northern Mexican gartersnake from federally listed species and/or their critical habitat, riparian and aquatic habitats in general continue to be adversely impacted for reasons previously discussed and the status of the northern Mexican gartersnake has continued to decline throughout its range in the United States. Evaluation of Information in the Petition The petitioners have provided substantial information that current regulatory mechanisms may not adequately protect the northern Mexican gartersnake and that the species may be continuing to decline throughout its distribution in the United States, and potentially in Mexico. E. Other Natural or Manmade Factors Affecting the Species' Continued Existence Information Provided in the Petition Marcy's checkered gartersnake may have ecological implications to the decline and future conservation of the northern Mexican gartersnake in southern Arizona according to information presented in the petition. Marcy's checkered gartersnake is a semi-terrestrial species that is able to co-exist to some degree with nonnative predators. This is largely due to its ability to forage in more terrestrial habitats, specifically in the juvenile size classes (Rosen and Schwalbe 1988). In every age class, the northern Mexican gartersnake forages in aquatic habitats where bullfrogs also occur, which increases not only the encounter rate between the two species, but also the juvenile mortality rate of the northern Mexican gartersnake. Marcy's checkered gartersnake is a potential benefactor of this scenario. The petitioners contend that as northern Mexican gartersnake numbers decline within a population, space becomes available for occupation by checkered gartersnakes, which maintains density-dependent pressures on the gartersnake population, potentially accelerating the decline of the northern Mexican gartersnake (Rosen and Schwalbe 1988). This, in combination with the other factors described above that have adversely affected the northern Mexican gartersnake prey base and the suitability of occupied and formerly occupied habitat, has contributed to the decline of this species. Evaluation of Information in the Petition The petitioners have provided substantial scientific information indicating that under certain circumstances the Marcy's checkered gartersnake may outcompete the northern Mexican gartersnake and could exacerbate the decline of the northern Mexican gartersnake in areas that contain small populations of the subspecies. Finding We have reviewed the petition and literature cited in the petition. On the basis of our review, we find that the petition presents substantial information indicating that listing the northern Mexican gartersnake may be warranted. The petition provides information that the main threats appear to be predation and competition with nonnative species, and secondary threats are habitat destruction and alteration from a variety of human activities. As such, we will initiate a status review of the northern Mexican gartersnake and, following a review of available scientific and commercial data, make a determination of whether listing the species under the Act is warranted at that time. We have reviewed the available information to determine if the existing and foreseeable threats pose an emergency. We have determined that an emergency listing is not warranted for this species at this time because some local populations within the middle/upper Verde River—lower Tonto Creek and upper Santa Cruz/San Pedro watersheds are not facing immediate threats. However, if at any time we determine that emergency listing of the northern Mexican gartersnake is warranted, we will initiate an emergency listing. The petitioners also request that critical habitat be designated for this species. We always consider the need for critical habitat designation when listing species. If we determine in our 12-month finding that listing the northern Mexican gartersnake is warranted, we will address the designation of critical habitat in the subsequent proposed rule. References Cited A complete list of all references cited herein is available upon request from the Field Supervisor (see ADDRESSES section). Author The primary authors of this document are staff at the Arizona Ecological Services Office (see ADDRESSES section). Authority The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 *et seq.* ). Dated: December 13, 2005. Marshall Jones, Deputy Director, Fish and Wildlife Service. [FR Doc. 06-1 Filed 1-3-06; 8:45 am]

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