Under the Federal Register Act (44 U.S.C. Chapter 15), the Administrative Committee of the Federal Register is responsible for establishing the prices charged for Federal Register publications. The Administrative Committee has determined that it must make price adjustments to certain publications to accurately reflect the current costs of production and distribution. This final rule will increase the subscription rates for the paper editions of the daily Federal Register , the Federal Register Index and LSA (List of CFR Sections Affected), the Code of Federal Regulations (CFR) and the Weekly Compilation of Presidential Documents. The subscription rates and the single copy prices of the microfiche editions of the daily Federal Register and CFR also will increase.

On September 1, 1992, the Administrative Committee adopted a policy to require revenues from subscriptions and single copy sales of ACFR publications to keep pace with printing and distribution costs, and postal rate increases. Since 1992, the Administrative Committee has periodically adjusted the prices of Federal Register publications in accordance with GPO cost analyses. The Administrative Committee's last price change regulation raised the prices of paper publications and lowered the prices of microfiche editions (61 FR 68118, December 27, 1996).

The final rule takes into account GPO's current analysis of its actual production and distribution costs over the past three years and projected costs for the year 2000. The Administrative Committee has determined that it is necessary to increase the prices charged for the paper editions of Federal Register publications by an average of 15 percent to achieve full cost recovery. This amounts to a 5 percent increase for each of the past three years since the last price changes. The increases are primarily attributable to higher labor expenses, postal rates and paper costs, and a substantial decline in sales of printed publications, causing upward pressure on the average cost per subscription. Price increases for the microfiche editions of the Federal Register and the CFR are the result of a competitive bidding process.

Single copy sales and subscriptions to Federal Register publications have declined steadily since online service on GPO Access began in 1994. The decline in sales accelerated when free access began in late 1995. Since the beginning of fiscal year 1995, the number of paid subscriptions to the daily Federal Register has declined by 60 per cent and sales of CFR products and other Federal Register publications have fallen off by more than 36 percent. As a result, a smaller subscriber base must absorb a greater share of the costs.

Over the same time period in which sales of Federal Register publications have fallen, the public has been using Federal Register publications online in large and increasing numbers. Information retrievals from online Federal Register publications have grown by 6612 percent since the beginning of fiscal year 1995. During fiscal year 1999, users retrieved 48 million individual documents from the online edition of the Federal Register and 88 million from the online CFR. These figures demonstrate that the Administrative Committee is meeting its goal for enhancing public access to Federal Register publications to provide essential information on the functions, actions and regulatory requirements of the Government.

The increased prices for Federal Register publications are reflected in amendments to 1 CFR part 11 of this final rule. The following rates will be effective March 24, 2000. The annual subscription rate for the daily Federal Register paper edition is increased to $638. For a combined Federal Register , Federal Register Index and LSA (List of CFR Sections Affected) subscription the price is increased to $697. The price of a single copy of the daily Federal Register paper edition is increased to $9. The annual subscription price of the microfiche edition of the Federal Register , which includes the Federal Register Index and LSA, is increased to $253. The price of a single copy of the daily Federal Register microfiche edition is increased to $2. The annual subscription price for the Federal Register Index is increased to $28. The annual subscription price for the monthly LSA is increased to $31. The annual subscription rates for a full set of CFR volumes are increased to $1,094 for the paper edition, and $290 for the microfiche edition. The price of a single copy of the CFR microfiche edition is increased to $2. The annual subscription rates for the Weekly Compilation of Presidential Documents are increased to $92 for delivery by non-priority mail and $151 for delivery by first-class mail. The price of a single copy of the Weekly Compilation is increased to $4.

In addition to the price changes contained in this document, the Administrative Committee is amending its regulations in 1 CFR parts 8, 10 and 11 to acknowledge the official status and availability of the online editions of the CFR and the Weekly Compilation of Presidential Documents. The Administrative Committee has general authority under 44 U.S.C. 1506 to determine the manner and form for publishing the Federal Register and its special editions. The CFR and Weekly Compilation are special editions of the Federal Register . The Government Printing Office Electronic Information Access Enhancement Act of 1993 (GPO Access), 44 U.S.C. 4101, provided additional authority for the Administrative Committee to expand public access to Federal Register publications, beginning with the inauguration of online Federal Register service on June 8, 1994.

In 1995 and 1996, the Administrative Committee authorized GPO and the Office of the Federal Register (OFR) to develop online editions of the CFR and other Federal Register publications to provide the American public with greater access to essential Government information. The OFR/GPO partnership posted selected volumes of the 1996 CFR in October of 1996 to begin the pilot program. Beginning with the 1997 set, all annual CFR volumes are available on the GPO Access service.

The online edition of the CFR is produced from the same OFR/GPO publication database that is used to print the paper volumes. It includes text-only files (with notations to indicate where graphics are omitted) and Portable Document Format (PDF) files which produce page-for-page replicas of the printed volumes, including all graphics. The text-only files ensure that persons with visual disabilities have equal access to federal regulations.

The CFR is the official codification of federal regulations having general applicability and legal effect. Under the Federal Register Act (44 U.S.C. 1510), the CFR is prima facie evidence of the original documents filed with the OFR and published in the Federal Register , and the fact that they are in effect on and after the dates specified in the codification. The CFR, in the formats authorized by the Administrative Committee, is the only official codification of federal regulations. By amending its regulations to recognize the online CFR on GPO Access as one of three authorized publication formats, the Administrative Committee assures the public that it may fully rely on the online edition of the CFR on GPO Access as an official legal publication.

In 1997, the OFR/GPO partnership developed a pilot for an online edition of the Weekly Compilation of Presidential Documents. The Weekly Compilation is an official serial publication of Presidential documents. OFR editors review all material submitted for publication in the Weekly Compilation to assure the accuracy and integrity of the publication. The Weekly Compilation contains Presidential statements, memoranda, messages to Congress and federal agencies, speeches and other remarks released by the White House. Like the online CFR, the online edition of the Weekly Compilation includes text-only files and PDF files. The files begin with documents from January 1993 through the present. By amending its regulations to recognize the official status of the online Weekly Compilation of Presidential Documents on GPO Access, the Administrative Committee assures the public that it may rely on the online edition as an authoritative source of historical information.

Accordingly, this final rule revises 1 CFR 8.6 and 11.3 by listing the online CFR on GPO Access as one of the three official formats authorized by the Administrative Committee. Sections 10.3 and 11.6 are revised to include the online edition of the Weekly Compilation of Presidential Documents on GPO Access as an official Federal Register publication. The affected sections are also slightly reorganized to create shorter paragraphs and a more parallel structure consistent with plain language requirements.

The Administrative Committee's last price change regulation invited public comment on the pricing structure of Federal Register publications. The Administrative Committee did not receive any comments relating specifically to the prices of print publications. But several customers made suggestions for improving the user interfaces of the online publications to make them better alternatives to the printed publications. In response to those concerns, OFR and GPO developed browsing features for the online Federal Register and CFR to provide direct access to material through hypertext tables of contents, and GPO added more powerful servers.

Customers who need assistance or wish to submit suggestions for improving online Federal Register publications are referred to the GPO Access User Support Team. GPO provides information on free public access to the online editions of Federal Register publications on the GPO Access service via:

• Telephone at 202-512-1530, or toll free at 1-888-293-6498;

• Fax at 202-512-1262;

• Email at gpoaccess@gpo.gov;

• GPO's Federal Register World Wide Web site at http://www.access.gpo/nara, or see the National Archives and Records Administration's Federal Register Web site at: http://www.nara.gov/fedreg;

• Federal depository libraries (for the location of the nearest depository library, call the telephone numbers listed above or access the information online at http://www.access.gpo.gov/su_docs/libpro.html); and

• The daily paper edition of the Federal Register on introductory page II.

The Administrative Committee has determined that publication of a proposed rule is unnecessary under the good cause exception of 5 U.S.C. 553(b)(B). The Administrative Committee must set the prices for Federal Register subscriptions and individual copies according to the funding mechanisms authorized under law for the Federal Register program. GPO is legally required to recover its production and distribution costs. The Administrative Committee has no discretion or means to subsidize the cost of its publications. The revised price schedule is based on an in-depth cost study conducted by GPO for the Administrative Committee, and only actual costs from prior years and conservative estimates of future costs were considered in setting these prices. Granting official status to the online editions of the CFR and the Weekly Compilation of Presidential Documents is a procedural matter. It is not a substantive rule that materially affects the rights or obligations of any person. For these reasons, the Administrative Committee has determined that there is good cause for promulgating this final rule without a prior notice of proposed rulemaking. The Administrative Committee continues to welcome comments from interested persons on all matters related to this final rule.

The final rule has been drafted in accordance with Executive Order 12866, section 1(b), “Principles of Regulation.” The Administrative Committee has determined that this final rule is not a significant regulatory action, as defined under section 3(f) of Executive Order 12866. The rule has been submitted to the Office of Management and Budget under section 6(a)(3)(E) of Executive Order 12866.

The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. , does not apply to rate increases necessary to recover the costs to the Government of printing and distributing Federal Register publications. This rule will not have a significant impact on small entities since it imposes no requirements, and any increased costs can be avoided by accessing Federal Register publications through the free GPO Access service over the Internet or at a Federal depository library.

This rule has no federalism implications under Executive Order 13132. It does not impose compliance costs on State or local governments or preempt State law.

This rule is not a major rule as defined by 5 U.S.C. 804(2). The Administrative Committee will submit a rule report, including a copy of this final rule, to each House of the Congress and to the Comptroller General of the United States as required under the congressional review provisions of the Small Business Regulatory Enforcement Fairness Act of 1986.

Administrative practice and procedure, Code of Federal Regulations, Government publications.

Government publications, Presidential documents, Public Papers of the Presidents of the United States, Weekly Compilation of Presidential Documents.

Code of Federal Regulations, Federal Register , Government publications, Public Papers of the Presidents of the United States, United States Government Manual, Weekly Compilation of Presidential Documents.

The Luftfahrt-Budesamt (LBA), which is the airworthiness authority for Germany, notified the Federal Aviation Administration (FAA) that an unsafe condition may exist on Hoffmann Propeller Co. HO27( ) and HO4/27 series propellers. The LBA advises that they have received reports of insufficient torque of propeller mounting bolts due to poor maintenance and operating conditions, loads, and environmental conditions such as humidity and temperature. This condition, if not corrected, could result in propeller mounting bolt failure, which could result in propeller separation and loss of control of the airplane.

This propeller model is manufactured in Germany 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 LBA has kept the FAA informed of the situation described above. The FAA has examined the findings of the LBA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other propellers of the same type design registered in the United States, the proposed AD would require installing improved propeller mounting bolts to the correct torque value. This AD would require the installation within 10 hours time-in-service, or 7 days after the effective date of this AD, whichever occurs first. After operating the airplane for one flight, check the torque, and retorque to the correct torque value, as required. The LBA classified this action as mandatory and issued airworthiness directive (AD) 1998-322/2, dated August 6, 1998, in order to assure the airworthiness of these propellers in Germany.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted to the address specified under the caption ADDRESSES. All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the 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 that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 98-ANE-64-AD.” The postcard will be date stamped and returned to the commenter.

The regulations adopted herein will 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 final rule does not have federalism implications under Executive Order (EO) No. 13132.

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in airplane, and is not a “significant regulatory action” under Executive Order No. 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 737-100, -200, -300, -400, and -500 series airplanes was published as a supplemental notice of proposed rulemaking (NPRM) in the Federal Register on June 2, 1999 (64 FR 29602). That action proposed to require repetitive testing of certain main tank fuel boost pumps to identify those with degraded performance, and replacement of degraded pumps with new or serviceable pumps. That action also proposed to require eventual replacement of the existing low pressure switches for boost pumps located in the main fuel tanks with higher threshold low pressure switches, which, when accomplished, terminates the repetitive testing.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.

Two commenters request that the proposed compliance time for replacement of the low pressure switches with higher low pressure switches be extended.

One commenter, the manufacturer, requests that the compliance time for installation of higher threshold switches on Model 737-200 series airplanes be extended from 2 to 3 years. The commenter states the vendor for the low pressure switches for Model 737-200 series airplanes had not committed to providing the required parts within the proposed 2-year compliance time. The commenter states that the pressure switch, unlike the one used on Model 737-300, -400, and -500 series airplanes, was previously used only on auxiliary fuel tank installations, and that production was in very low quantities. There are approximately 1,000 Model 737-200 series airplanes that would require the subject switch. The commenter also states that the vendor for the low pressure switches for Model 737-300, -400, and -500 is able to provide the needed hardware within the proposed compliance time.

Another commenter requests that airplanes with Argo-Tech/TRW boost pumps installed in the main tanks be allowed up to 4 years to install the higher threshold low pressure switches to accommodate parts replacement at heavy maintenance visits.

The FAA does not concur with the commenters' requests. In developing an appropriate compliance time for this action, the FAA considered not only the degree of urgency associated with addressing the subject unsafe condition, but the availability of required parts and the practical aspect of accomplishing the required replacement within an interval of time that parallels normal scheduled maintenance for the majority of affected operators. Subsequent to closure of the comment period of the proposed AD, the FAA has confirmed with the manufacturer that an ample number of required parts will be available for accomplishment of the replacement within the proposed 2-year compliance time. However, under the provisions of paragraph (c) of the final rule, the FAA may approve requests for adjustments to the compliance time if data are submitted to substantiate that such an adjustment would provide an acceptable level of safety.

One commenter, an operator, recommends that the compliance time for accomplishing the pump output pressure test follow the 180-day threshold recommended in Boeing Alert Service Bulletin 737-28A1114, Revision 1, dated April 2, 1998. The commenter states that the 180-day compliance time will not compromise safe operation of the airplane fuel feed system based upon results of their testing and the redundancy associated with the fuel system on Model 737 series airplanes.

The FAA does not concur with the commenter's request. As discussed in the preamble of the original NPRM (63 FR 42596, August 10, 1998), the FAA has determined that an interval of 180 days would not address the identified unsafe condition in a timely manner, as degraded fuel boost pump performance may go undetected. Degraded fuel boost pump performance that is not detected by the low pressure switch and annunciated on the flight deck could result in multi-engine suction feed operation without flight crew indication, and possible consequent multiple engine failure. Redundancy in the fuel system has not prevented a number of in-service engine failures associated with pumps operating in a degraded manner. Therefore, no change to the final rule is necessary.

One commenter requests that the applicability of the proposed AD be revised to only affect airplanes which are fitted with General Electric Company (GEC) boost pumps. The commenter points out that the Boeing Alert Service Bulletin 737-28A1114, Revision 1, dated April 2, 1998, reveals that the unsafe condition or flameout occurred on Model 737-300, -400, and -500 series airplanes equipped with GEC pumps. No case of flameout was reported on Model 737-100, or -200 series airplanes equipped with Pratt and Whitney Model JT8D engines. The commenter states that its request will in no way affect the safety of the airplane.

The FAA does not concur with the commenter's request. As discussed in the supplemental NPRM, the FAA has determined that all pump configurations on affected Boeing Model 737 series airplanes may be subject to the identified unsafe condition.

The FAA has revised paragraph (a)(4) of the final rule to clarify that accomplishment of the required replacement constitutes terminating action for paragraphs (a)(1), (a)(2), and (a)(3) of this AD.

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the change previously described. The FAA has determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 2,772 airplanes of the affected design in the worldwide fleet. The FAA estimates that 1,140 airplanes of U.S. registry will be affected by this AD.

It will take approximately 2-8 work hours per airplane to accomplish the required testing for airplanes equipped with GEC pumps, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the testing required by this AD on U.S. operators is estimated to be $120-$480 per airplane, per testing cycle.

It will take approximately 4-6 work hours per airplane to accomplish the required modification, at an average labor rate of $60 per work hour. Required parts will cost $1,900 [for airplanes equipped with part number (P/N) 60B92400-3 low pressure switches] or $2,700 (for airplanes equipped with P/N 10-3067-3 low pressure switches). Based on these figures, the cost impact of the modification required by this AD on U.S. operators is estimated to be $273,600-$410,400, or $2,140-$3,060 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted.

The regulations adopted herein will 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. Therefore, in accordance with Executive Order 12612, it is determined that this final rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under 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. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Israel Aircraft Industries Model Astra SPX series airplanes was published in the Federal Register on December 9, 1999 (64 FR 68959). That action proposed to require a one-time inspection to measure the countersink angle of the bolt holes in the lower scissors fitting of the horizontal stabilizer, and corrective actions, if necessary.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.

The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

The FAA estimates that 19 airplanes of U.S. registry will be affected by this AD, that it will take approximately 20 work hours per airplane to accomplish the required inspection to measure the countersink angle of the bolt holes, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $22,800, or $1,200 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted.

The regulations adopted herein will 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 final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under 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. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

As a result of the Base Realignment and Closure (BRAC) recommendations and decisions, effective July 2, 1999, the United States Marine Corps permanently terminated ATC service at the El Toro MCAS. On November 5, 1999 , the FAA published an NPRM (64 FR 60388) that proposed to revoke the El Toro MCAS, CA, Class C airspace area and remove references to the El Toro MCAS from the Santa Ana, CA, Class C airspace area description. Interested parties were invited to participate in this rulemaking effort by submitting comments on the proposal to the FAA.

On November 5, 1999, the FAA published a notice of proposed rulemaking (NPRM) in the Federal Register (Airspace Docket 99-AWA-10; 64 FR 60388) proposing to revoke the El Toro MCAS Class C airspace area and revise the Santa Ana Class C airspace area, CA. The comment period for this NPRM closed on December 23, 1999.

No comments were received during the comment period. However, on January 31, 2000, one comment was received, objecting to the proposed revocation of the El Toro Class C airspace area, from the Orange County El Toro Local Redevelopment Authority (herein after referred to as “The Authority”) on behalf of the County of Orange. The Authority requested that the FAA temporarily suspend the current Class C airspace area, due to ongoing planning activities to convert the former MCAS El Toro into a commercial airport, and continue to chart the area. The Authority is of the belief that by retaining the airspace as is, the need to re-chart the airspace for a proposed commercial airport and possible environmental studies by the FAA under the National Environmental Protection Agency (NEPA) would be eliminated. The commentor also stated it would be consistent with historical practice to maintain the regulatory airspace since the airspace in question was only effective during published hours.

The FAA does not agree with this commentor. It is FAA policy to work with local aviation interests to ascertain whether future changes should be considered to better accommodate all airspace users. The FAA establishes Class C airspace areas when it is determined that they will improve safety and enhance the management of aircraft operations. The FAA does not maintain regulatory airspace based on planning activities for proposed airports. If operations at the former MCAS meet the requirements for the establishment of regulatory airspace, the FAA would initiate rulemaking action to propose any required changes in the airspace area classification.

Further, the FAA does not necessarily agree that there will be a need for an environmental study of this airspace area. The FAA has determined that regulatory airspace areas established to improve safety and/or manage aircraft operations qualifies for categorical exclusion from environmental review in accordance with FAA Order 1050.1, Policies and Procedures for Considering Environmental Impacts.

This action amends 14 CFR part 71 by revoking the Class C airspace area designated as the “El Toro MCAS, CA” Class C airspace area. The removal is necessary due to the closure of the ATC facilities at the El Toro MCAS and will revert the current Class C airspace to Class E controlled airspace. This action also revises the Santa Ana, CA, Class C airspace area, by removing references to the El Toro MCAS from the description. These actions merely revoke the Class C airspace area designation for the El Toro MCAS and revises the description for the Santa Ana, CA, Class C airspace area, but does not change the dimensions, operating requirements, or flight patterns in the Santa Ana, CA, area.

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

The coordinates for this airspace docket are based on North American Datum 83. Class C airspace areas are published in paragraph 4000 of FAA Order 7400.9G, dated September 1, 1999, and effective September 16, 1999, which is incorporated by reference in 14 CFR 71.1. The Class C airspace area listed in this document will be published subsequently in the Order.

In 1994, title I of the Improving America's Schools Act (IASA), Public Law 103-382, reauthorized the ESEA for a period of 5 years (1995-1999). The Safe and Drug-Free Schools and Communities Native Hawaiian Program is authorized by sections 4111(a)(4) and 4118 of the SDFSCA, which is title IV of ESEA. Section 4118(a) of the SDFSCA authorizes the Secretary to make grants to or enter into cooperative agreements or contracts with “organizations primarily serving and representing Native Hawaiians which are recognized by the Governor of the State of Hawaii to plan, conduct, and administer programs, or portions thereof, which are authorized by and consistent with the provisions of SDFSCA for the benefit of Native Hawaiians.” Section 4118(b) of the SDFSCA defines the term “Native Hawaiian” as any individual whose ancestors were natives, prior to 1778, of the area which now comprises the State of Hawaii.

In 1995 the Department held a competition under section 4118 of the SDFSCA among the eligible entities for the SDFSCA Native Hawaiian Program. As a result of that competition, the Secretary awarded a grant to one entity with FY 1995 funds for a project period of 48 months, based on the grant application. Since that time, the grantee for the SDFSCA Native Hawaiian Program under the SDFSCA has received continuation awards with funds from three subsequent fiscal years (FY 1996, FY 1997, and FY 1998). The grantee has received approximately $1 million per year.

As of the date of publication of this final notice, the ESEA has not been reauthorized, and the current authorization has been extended into FY 2000. This waiver allows the period of funding for the SDFSCA Native Hawaiian Program to be directly tied to the time period for reauthorization of the current ESEA, including SDFSCA. This waiver for the SDFSCA Native Hawaiian Program is in force only as long as the current SDFSCA is in effect and will terminate upon reauthorization of ESEA.

If the Department were to hold a new competition under the existing legislation in FY 2000 (using FY 1999 funds), the Department would only fund the project for a limited project period up to 24 months, in anticipation that the program statute would be reauthorized prior to FY 2001. It would take a new grantee much of this time to ‘start up’, given the scope and complexity of the services provided and the time it takes to hire qualified staff and develop plans and relationships that are responsive to the Native Hawaiian population in the Hawaiian islands. Holding such a competition would impose additional costs at the Federal level without a guarantee that the new grantee would be able to provide the technical assistance and services necessary to schools and communities serving the Native Hawaiian population, as the Department moves towards reauthorization of ESEA. Therefore, in the best interest of the Federal Government, the Assistant Secretary extends the current project for up to two additional years and waives the regulation at 34 CFR 75.261, which permits extensions of projects only at no cost to the Federal Government. This action is consistent with the President's mandate to implement cost-effective, cost-saving initiatives.

On October 6, 1999, the Secretary published a notice of proposed waiver (64FR 54254-54255) for the Safe and Drug-Free Schools and Communities Act Native Hawaiian Program. In the notice of proposed waiver the Secretary invited public comments. The Secretary received one comment that did not propose a substantive change, and therefore is not addressed in this final notice of waiver.

This program is subject to the requirements of Executive Order 12372 and the regulations in 34 CFR 79. The objective of the Executive order is to foster an intergovernmental partnership and a strengthened federalism by relying on processes developed by State and local governments for coordination and review of proposed Federal financial assistance. In accordance with this order, this document is intended to provide early notification of the Department's specific plans and actions for this program.

The Secretary waives the delayed effective date under 5 U.S.C. 553(d) as unnecessary and contrary to the public interest. This notice extends the grant period for the current SDFSCA Native Hawaiian Program grantee to ensure continuation of services while the current SDFSCA is in force. It will terminate upon reauthorization of ESEA. A delayed effective date would serve no useful purpose.

You may view this document, as well as all other Department of Education documents published in the Federal Register , in text or Adobe Portable Document Format (PDF) on the Internet at either of the following sites:

Throughout this document wherever “we,” “us,” or “our” are used we mean EPA.

We are approving revisions to PM emissions regulations for IPL in Marion County, Indiana, which were submitted by the IDEM on November 22, 1999, as amendments to its SIP. The revisions apply to 3 generating stations located in Indianapolis: Perry K, Perry W (demolished), and E. W. Stout. The revisions include relaxation of some PM limits, tightening of other limits, and the elimination of limits for several boilers which are no longer operating. The revisions also include the combination of annual emissions limits for several boilers, and the correction of a typographical error in one limit. The submitted revisions are contained in Title 326 Indiana Administrative Code, Article 6, Rule 1, Section 12 (326 IAC 6-1-12).

Indiana has eliminated from rule 326 IAC 6-1-12 boilers 17 and 18 at IPL's Perry W generating station, and boilers 1 through 8 at IPL's E. W. Stout generating station. The annual PM emission limits for these eliminated sources totaled 52.54 tons per year.

Indiana has revised some short-term PM emissions limits for sources at IPL's Perry K generating station. Indiana has decreased the PM emissions limits for boilers 17 and 18 from 0.082 pounds per million British Thermal Units (lb/MMBTU) each to 0.015 lb/MMBTU each. Indiana has increased the PM emissions limits for boilers 15 and 16 from 0.082 lb/MMBTU each to 0.106 lb/MMBTU each. Indiana has increased the PM emissions limit for boiler 12 from 0.125 lb/MMBTU to 0.175 lb/MMBTU.

Indiana combined the annual emissions limits for boilers 11 through 18 at IPL's Perry K generating station into one overall limit. The previous version of the rule contained limits of 302.2 tpy for boilers 11 and 12 combined, 135.4 tpy for boilers 13 and 14 combined, and 46.8 tpy for boilers 15, 16, 17, and 18 combined. The revised rule contains one PM limit of 484.4 tpy for boilers 11 through 18 combined.

Indiana promulgated the annual PM emission limit for Boiler 70 at IPL's E.W. Stout generating station as 830.7 tpy in 1981. However, this limit was printed in the November 1, 1981 Indiana Register (4 IR 2386) as 0.38 tpy. This SIP revision corrects this typographical error.

The general criteria used by the EPA to evaluate such emissions trades, or “bubbles”, under the Clean Air Act and applicable regulations are set out in the EPA's December 4, 1986, Emissions Trading Policy Statement (ETPS) (see 51 FR 43814). Emissions trades such as IPL's, which result in an overall decrease in allowable emissions, require a “Level II” modeling analysis under the ETPS to ensure that the NAAQS will be protected. A Level II analysis must include emissions from the sources involved in the trade, and must demonstrate that the air quality impact of the trade does not exceed set significance levels. For PM, the significance levels are 10 micrograms per cubic meter (μg/m 3 ) for any 24-hour period, and 5 μg/m 3 for any annual period.

The modeling analysis submitted by the IDEM in support of the requested IPL SIP revision is consistent with a Level II analysis. The analysis shows that the SIP revision will not cause or contribute to any exceedances of the PM NAAQS. The maximum modeled PM air quality impacts were 4.3 μg/m 3 in 24-hours, and 0.1 μg/m 3 on an annual basis. Therefore, IDEM has demonstrated that this SIP revision will not have a significant impact on air quality.

This SIP revision will result in a decrease in allowable PM emissions of 52.54 tons per year. In addition, an air quality modeling analysis conducted by IDEM shows that the maximum daily and annual impacts of this SIP revision are well below established significance levels. Therefore, this SIP revision will not have an adverse effect on PM air quality.

We are approving, through direct final rulemaking, revisions to PM emissions regulations for IPL in Marion County, Indiana. We are publishing this action without prior proposal because we view this as a noncontroversial revision and anticipate no adverse comments. However, in a separate document in this Federal Register publication, we are proposing to approve the SIP revision should adverse written comments be filed. This action will be effective without further notice unless we receive relevant adverse written comment by March 24, 2000. Should we receive such comments, we will publish a final rule informing the public that this action will not take effect. Any parties interested in commenting on this action should do so at this time. If no such comments are received, you are advised that this action will be effective on April 24, 2000.

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

Under Executive Order 12875, EPA may not issue a regulation that is not required by statute and that creates a mandate upon a state, local, or tribal government, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by those governments. If the mandate is unfunded, EPA must provide to the Office of Management and Budget a description of the extent of EPA's prior consultation with representatives of affected state, local, and tribal governments, the nature of their concerns, copies of written communications from the governments, and a statement supporting the need to issue the regulation. In addition, Executive Order 12875 requires EPA to develop an effective process permitting elected officials and other representatives of state, local, and tribal governments “to provide meaningful and timely input in the development of regulatory proposals containing significant unfunded mandates.” Today's rule does not create a mandate on state, local or tribal governments. The rule does not impose any enforceable duties on these entities. Accordingly, the requirements of section 1(a) of Executive Order 12875 do not apply to this rule.

Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments. If the mandate is unfunded, EPA must provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.” Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. This final rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of State action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. EPA , 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

Under section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated annual costs to State, local, or tribal governments in the aggregate; or to private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated annual costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804, however, exempts from section 801 the following types of rules: rules of particular applicability; rules relating to agency management or personnel; and rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding this rulemaking action under section 801 because this is a rule of particular applicability.

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 24, 2000. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Under section 111(d) of the Clean Air Act (Act), EPA has established procedures whereby States submit plans to control certain existing sources of “designated pollutants.” Designated pollutants are defined as pollutants for which a standard of performance for new sources applies under section 111, but which are not “criteria pollutants” (i.e., pollutants for which National Ambient Air Quality Standards (NAAQS) are set pursuant to sections 108 and 109 of the Act) or hazardous air pollutants (HAPs) regulated under section 112 of the Act. As required by section 111(d) of the Act, EPA established a process at 40 CFR part 60, subpart B, which States must follow in adopting and submitting a section 111(d) plan. Whenever EPA promulgates a new source performance standard (NSPS) that controls a designated pollutant, EPA establishes EG in accordance with 40 CFR 60.22 which contain information pertinent to the control of the designated pollutant from that NSPS source category (i.e., the “designated facility” as defined at 40 CFR 60.21(b)). Thus, a State, local, or tribal agency's section 111(d) plan for a designated facility must comply with the EG for that source category as well as 40 CFR part 60, subpart B.

On March 12, 1996, EPA published EG for existing MSW landfills at 40 CFR part 60, subpart Cc (40 CFR 60.30c through 60.36c) and NSPS for new MSW Landfills at 40 CFR part 60, subpart WWW (40 CFR 60.750 through 60.759). ( See 61 FR 9905-9944.) The pollutants regulated by the NSPS and EG are MSW landfill emissions, which contain a mixture of volatile organic compounds (VOCs), other organic compounds, methane, and HAPs. VOC emissions can contribute to ozone formation which can result in adverse effects to human health and vegetation. The health effects of HAPs include cancer, respiratory irritation, and damage to the nervous system. Methane emissions contribute to global climate change and can result in fires or explosions when they accumulate in structures on or off the landfill site. To determine whether control is required, nonmethane organic compounds (NMOCs) are measured as a surrogate for MSW landfill emissions. Thus, NMOC is considered the designated pollutant. The designated facility which is subject to the EG is each existing MSW landfill (as defined in 40 CFR 60.32c) for which construction, reconstruction or modification was commenced before May 30, 1991.

Pursuant to 40 CFR 60.23(a), States were required to either: (1) submit a plan for the control of the designated pollutant to which the EG applies; or (2) submit a negative declaration if there were no designated facilities in the State within nine months after publication of the EG (by December 12, 1996).

EPA was involved in litigation over the requirements of the MSW landfill EG and NSPS beginning in the summer of 1996. On November 13, 1997, EPA issued a notice of proposed settlement in National Solid Wastes Management Association v. Browner, et. al. , No. 96-1152 (D.C. Cir), in accordance with section 113(g) of the Act. See 62 FR 60898. It is important to note that the settlement did not vacate or void the existing MSW landfill EG or NSPS. Pursuant to the settlement agreement, EPA published a direct final rulemaking on June 16, 1998, in which EPA amended 40 CFR part 60, subparts Cc and WWW, to add clarifying language, make editorial amendments, and to correct typographical errors. See 63 FR 32743-32753, 32783-32784. EPA regulations at 40 CFR 60.23(a)(2) provide that a State has nine months to adopt and submit any necessary State Plan revisions after publication of a final revised emission guideline document. The Knox County Department of Air Quality Management (DAQM) has amended their rules for MSW landfills in Section 40.0, Subsection 40.2, Item UUU (effective date of July 21, 1999), to reflect the June 16, 1998, amendments to subparts Cc and WWW. Accordingly, the MSW landfill EG published on March 12, 1996, and amended on June 16, 1998, was used as the basis by EPA for review of this section 111(d) Plan submittal.

This action approves the section 111(d) Plan submitted by the State of Tennessee for the Knox County, Tennessee, DAQM to implement and enforce subpart Cc.

The State of Tennessee, on behalf of Knox County DAQM, submitted to EPA on July 29, 1999, the following in their section 111(d) Plan for implementing and enforcing the emission guidelines for existing MSW landfills in Knox County, Tennessee: Enforceable Mechanisms; Legal Authority; Emission Limits; Review and Approval Process for Collection and Control System Design Plans; Compliance Schedules; MSW Landfill Source and Emission Inventory; Test Methods and Procedures; Source Surveillance, Compliance Assurance, and Enforcement; Demonstration That the Public Had Adequate Notice and Public Hearing Record; Submittal of Progress Reports to EPA; and applicable State of Tennessee statutes and rules and ordinances of the Knox County DAQM.

The approval of the Knox County DAQM Plan is based on finding that: (1) The Knox County DAQM provided adequate public notice of public hearings for the proposed rulemaking which allows the Knox County DAQM to implement and enforce the EG for MSW landfills; and (2) the Knox County DAQM also demonstrated legal authority to adopt emission standards and compliance schedules applicable to the designated facilities; enforce applicable laws, regulations, standards and compliance schedules; seek injunctive relief; obtain information necessary to determine compliance; require recordkeeping; conduct inspections and tests; require the use of monitors; require emission reports of owners and operators; and make emission data publicly available.

In the Plan submittal, the Knox County DAQM cites the following references for the legal authority: the State of Tennessee Air Quality Act (Tennessee Coda Annotated 68-210-115, “Local Pollution Control Programs”); Knox County Ordinance No. 0-90-9-115; and the Tennessee Certificate of Exemption for Knox County. On the basis of these statutes and rules for Tennessee and Knox County, the Plan is approved as being at least as protective as the Federal requirements for existing MSW landfills.

In the Plan submittal, the Knox County DAQM cites the enforceable mechanism for implementing the EG for existing MSW landfills. The enforceable mechanisms are the regulations adopted by the Knox County DAQM in section 40.0, subsection 40.2, item UUU, “Municipal Solid Waste Landfills.” The County's regulations meet the Federal requirements for an enforceable mechanism and are approved as being at least as protective as the Federal requirements contained in subpart Cc for existing MSW landfills.

In the Plan submittal, the Knox County DAQM cites all emission limitations for the major pollutant categories related to the designated sites and facilities. These limitations in item UUU are approved as being at least as protective as the Federal requirements contained in subpart Cc for existing MSW landfills.

In the Plan submittal, the Knox County DAQM included a source and emission inventory of all designated pollutants for each MSW landfill in Knox County. This portion of the Plan has been reviewed and approved as meeting the Federal requirements for existing MSW landfills.

The Plan submittal describes the process the Knox County DAQM will utilize for the review of site-specific design plans for gas collection and control systems. The process outlined in the Plan meets the Federal requirements contained in subpart Cc for existing MSW landfills.

In the Plan submittal, the Knox County DAQM cites the compliance schedule adopted in Item UUU for each existing MSW landfill to be in compliance by December 12, 1997. These compliance times for affected MSW landfills address the required compliance time lines of the EG. This portion of the Plan has been reviewed and approved as being at least as protective as Federal requirements for existing MSW landfills.

The Knox County DAQM Plan submittal includes its legal authority to require owners and operators of designated facilities to maintain records and report to their agency the nature and amount of emissions and any other information that may be necessary to enable their agency to judge the compliance status of the facilities. The Knox County DAQM also cites its legal authority to provide for periodic inspection and testing and provisions for making reports of MSW landfill emissions data, correlated with emission standards that apply, available to the general public. The State of Tennessee, on behalf of Knox County DAQM, submitted regulations to support the requirements of monitoring, recordkeeping, reporting, and compliance assurance in the Plan submittal. These Knox County rules in Item UUU have been reviewed and approved as being at least as protective as Federal requirements for existing MSW landfills.

The Plan submittal outlines how the Knox County DAQM will provide progress reports of Plan implementation to the EPA on an annual basis. These progress reports will include the required items pursuant to 40 CFR part 60, subpart B. This portion of the Plan has been reviewed and approved as meeting the Federal requirement for Plan reporting.

Consequently, EPA finds that the Knox County DAQM Plan meets all of the requirements applicable to such plans in 40 CFR part 60, subparts B and Cc. The State of Tennessee, on behalf of Knox County DAQM, did not, however, submit evidence of authority to regulate existing MSW landfills in Indian Country. Therefore, EPA is not approving this Plan as it relates to those sources.

EPA is approving the Knox County DAQM section 111(d) Plan, submitted by the State of Tennessee on July 29, 1999, for implementing and enforcing the EG applicable to existing MSW landfills, except for those existing MSW landfills located in Indian Country. MSW landfills located in other Tennessee counties are addressed in separate rulemakings. As provided by 40 CFR 60.28(c), any revisions to the State Plan or associated regulations will not be considered part of the applicable plan until submitted by the State in accordance with 40 CFR 60.28(a) or (b), as applicable, and until approved by EPA in accordance with 40 CFR part 60, subpart B.

The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective April 24, 2000 without further notice unless the Agency receives adverse comments by March 24, 2000.

If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on April 24, 2000 and no further action will be taken on the proposed rule.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings' issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 24, 2000. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. . This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Under section 111(d) of the Clean Air Act (Act), EPA has established procedures whereby States submit plans to control certain existing sources of “designated pollutants.” Designated pollutants are defined as pollutants for which a standard of performance for new sources applies under section 111, but which are not “criteria pollutants” (i.e., pollutants for which National Ambient Air Quality Standards (NAAQS) are set pursuant to sections 108 and 109 of the Act) or hazardous air pollutants (HAPs) regulated under section 112 of the Act. As required by section 111(d) of the Act, EPA established a process at 40 CFR part 60, subpart B, which States must follow in adopting and submitting a section 111(d) plan. Whenever EPA promulgates a new source performance standard (NSPS) that controls a designated pollutant, EPA establishes EG in accordance with 40 CFR 60.22 which contain information pertinent to the control of the designated pollutant from that NSPS source category (i.e., the “designated facility” as defined at 40 CFR 60.21(b)). Thus, a State, local, or tribal agency's section 111(d) plan for a designated facility must comply with the EG for that source category as well as 40 CFR part 60, subpart B. On March 12, 1996, EPA published EG for existing MSW landfills at 40 CFR part 60, subpart Cc (40 CFR 60.30c through 60.36c) and NSPS for new MSW Landfills at 40 CFR part 60, subpart WWW (40 CFR 60.750 through 60.759). ( See 61 FR 9905-9944.) The pollutants regulated by the NSPS and EG are MSW landfill emissions, which contain a mixture of volatile organic compounds (VOCs), other organic compounds, methane, and HAPs. VOC emissions can contribute to ozone formation which can result in adverse effects to human health and vegetation. The health effects of HAPs include cancer, respiratory irritation, and damage to the nervous system. Methane emissions contribute to global climate change and can result in fires or explosions when they accumulate in structures on or off the landfill site. To determine whether control is required, nonmethane organic compounds (NMOCs) are measured as a surrogate for MSW landfill emissions. Thus, NMOC is considered the designated pollutant. The designated facility which is subject to the EG is each existing MSW landfill (as defined in 40 CFR 60.32c) for which construction, reconstruction or modification was commenced before May 30, 1991.

Pursuant to 40 CFR 60.23(a), States were required to either: (1) submit a plan for the control of the designated pollutant to which the EG applies; or (2) submit a negative declaration if there were no designated facilities in the State within nine months after publication of the EG (by December 12, 1996).

EPA was involved in litigation over the requirements of the MSW landfill EG and NSPS beginning in the summer of 1996. On November 13, 1997, EPA issued a notice of proposed settlement in National Solid Wastes Management Association v. Browner, et.al, No. 96-1152 (D.C. Cir), in accordance with section 113(g) of the Act. See 62 FR 60898. It is important to note that the settlement did not vacate or void the existing MSW landfill EG or NSPS. Pursuant to the settlement agreement, EPA published a direct final rulemaking on June 16, 1998, in which EPA amended 40 CFR part 60, subparts Cc and WWW, to add clarifying language, make editorial amendments, and to correct typographical errors. See 63 FR 32743-32753, 32783-32784. EPA regulations at 40 CFR 60.23(a)(2) provide that a State has nine months to adopt and submit any necessary State Plan revisions after publication of a final revised emission guideline document. The Chattanooga-Hamilton County Air Pollution Control Bureau (APCB) has amended their rules for MSW landfills in the Chattanooga City Code, Part II, Section 4-41, Rule 15.3 (effective date of October 21, 1998), to reflect the June 16, 1998, amendments to subparts Cc and WWW. Accordingly, the MSW landfill EG published on March 12, 1996, and amended on June 16, 1998, was used as the basis by EPA for review of this section 111(d) Plan submittal.

This action approves the section 111(d) Plan submitted by the State of Tennessee for the Chattanooga-Hamilton County APCB to implement and enforce subpart Cc.

The State of Tennessee, on behalf of the Chattanooga-Hamilton County APCB, submitted to EPA on April 26, 1999, the following in their section 111(d) Plan for implementing and enforcing the emission guidelines for existing MSW landfills in Chattanooga-Hamilton County, Tennessee: Enforceable Mechanisms; Legal Authority; Emission Limits; Review and Approval Process for Collection and Control System Design Plans; Compliance Schedules; MSW Landfill Source and Emission Inventory; Test Methods and Procedures; Source Surveillance, Compliance Assurance, and Enforcement; Demonstration That the Public Had Adequate Notice and Public Hearing Record; Submittal of Progress Reports to EPA; and applicable statutes and rules of the State of Tennessee and ordinances of the Chattanooga-Hamilton County APCB.

The approval of the Chattanooga-Hamilton County APCB Plan is based on finding that: (1) the Chattanooga-Hamilton County APCB provided adequate public notice of public hearings for the proposed rulemaking which allows the Chattanooga-Hamilton County APCB to implement and enforce the EG for MSW landfills; and (2) the Chattanooga-Hamilton County APCB also demonstrated legal authority to adopt emission standards and compliance schedules applicable to the designated facilities; enforce applicable laws, regulations, standards and compliance schedules; seek injunctive relief; obtain information necessary to determine compliance; require recordkeeping; conduct inspections and tests; require the use of monitors; require emission reports of owners and operators; and make emission data publicly available.

In the Plan submittal, the Chattanooga-Hamilton County APCB cites the following references for the legal authority: the State of Tennessee Air Quality Act (Tennessee Code Annotated 68-210-115, “Local Pollution Control Programs”); Chattanooga-Hamilton County Ordinance No. 10786; and the Tennessee Certificate of Exemption for Chattanooga-Hamilton County. On the basis of these statutes and rules for Tennessee and Chattanooga-Hamilton County, the Plan is approved as being at least as protective as the Federal requirements for existing MSW landfills.

In the Plan submittal, the Chattanooga-Hamilton County APCB cites the enforceable mechanism for implementing the EG for existing MSW landfills. The enforceable mechanisms are the regulations adopted by the Chattanooga-Hamilton County APCB in the Chattanooga City Code, Part II, Chapter 4, Section 4-41, Rule 15.3, “Emissions Standards for Municipal Solid Waste Landfills.” The County's regulations meet the Federal requirements for an enforceable mechanism and are approved as being at least as protective as the Federal requirements contained in Subpart Cc for existing MSW landfills.

In the Plan submittal, the Chattanooga-Hamilton County APCB cites all emission limitations for the major pollutant categories related to the designated sites and facilities. These limitations in Rule 15.3 are approved as being at least as protective as the Federal requirements contained in Subpart Cc for existing MSW landfills.

In the Plan submittal, the Chattanooga-Hamilton County APCB included a source and emission inventory of all designated pollutants for each MSW landfill in Chattanooga-Hamilton County. This portion of the Plan has been reviewed and approved as meeting the Federal requirements for existing MSW landfills.

The Plan submittal describes the process the Chattanooga-Hamilton County APCB will utilize for the review of site-specific design plans for gas collection and control systems. The process outlined in the Plan meets the Federal requirements contained in Subpart Cc for existing MSW landfills.

In the Plan submittal, the Chattanooga-Hamilton County APCB cites the compliance schedule adopted in Rule 15.3 for each existing MSW landfill to be in compliance by December 12, 1997. These compliance times for affected MSW landfills address the required compliance time lines of the EG. This portion of the Plan has been reviewed and approved as being at least as protective as Federal requirements for existing MSW landfills.

The Chattanooga-Hamilton County APCB Plan submittal includes its legal authority to require owners and operators of designated facilities to maintain records and report to their agency the nature and amount of emissions and any other information that may be necessary to enable the agency to judge the compliance status of the facilities. The Chattanooga-Hamilton County APCB also cites its legal authority to provide for periodic inspection and testing and provisions for making reports of MSW landfill emissions data, correlated with emission standards that apply, available to the general public. The State of Tennessee, on behalf of the Chattanooga-Hamilton County APCB, submitted regulations to support the requirements of monitoring, recordkeeping, reporting, and compliance assurance in the Plan submittal. These Chattanooga-Hamilton County regulations in Rule 15.3 have been reviewed and approved as being at least as protective as Federal requirements for existing MSW landfills.

The Plan submittal outlines how the Chattanooga-Hamilton County APCB will provide progress reports of Plan implementation to the EPA on an annual basis. These progress reports will include the required items pursuant to 40 CFR part 60, subpart B. This portion of the Plan has been reviewed and approved as meeting the Federal requirement for Plan reporting.

Consequently, EPA finds that the Chattanooga-Hamilton County APCB Plan meets all of the requirements applicable to such plans in 40 CFR part 60, subparts B and Cc. The State of Tennessee, on behalf of Chattanooga-Hamilton County APCB, did not, however, submit evidence of authority to regulate existing MSW landfills in Indian Country. Therefore, EPA is not approving this Plan as it relates to those sources.

EPA is approving the Chattanooga-Hamilton County APCB section 111(d) Plan, submitted by the State of Tennessee on April 26, 1999, for implementing and enforcing the EG applicable to existing MSW landfills, except for those existing MSW landfills located in Indian Country. MSW landfills located in other Tennessee counties are addressed in separate rulemakings. As provided by 40 CFR 60.28(c), any revisions to the State Plan or associated regulations will not be considered part of the applicable plan until submitted by the State in accordance with 40 CFR 60.28(a) or (b), as applicable, and until approved by EPA in accordance with 40 CFR part 60, subpart B.

The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective April 24, 2000 without further notice unless the Agency receives adverse comments by March 24, 2000.

If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on April 24, 2000 and no further action will be taken on the proposed rule.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings' issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 24, 2000. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

You may be affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in the table could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this action might apply to certain entities. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT.

1. Electronically . You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. To access this document, on the Home Page select “Laws and Regulations” and then look up the entry for this document under the “ Federal Register --Environmental Documents.” You can also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/.

2. In person . The Agency has established an official record for this action under docket control number OPP-300968. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

Time-limited tolerances for 3-dichloroacetyl-5-(2-furanyl)-2,2-dimethyloxazolidine (furilazole) in or on corn commodities, (grain, fodder, and forage), at 0.01 ppm were previously established as requested by Monsanto Company under the Federal Food, Drug, and Cosmetic Act in a pesticide tolerance rule dated May 10, 1994 (59 FR 24059) (FRL-4777-2). These tolerances expired on June 30, 1996.

In the Federal Register of October 20, 1999, (64 FR 56502-56505) (FRL-6386-9), EPA issued a notice pursuant to section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170) announcing the filing of a pesticide petition (PP 1E4031) for tolerance by Monsanto Company, Suite 1100, 700 14 th Street NW., Washington, DC 20005. This notice included a summary of the petition prepared by Monsanto, the petitioner. There were no comments received in response to the notice of filing.

The petition requested that 40 CFR 180.471 be amended to establish again tolerances for residues of the inert ingredient (herbicide safener) (3-dichloroacetyl-5-(2-furanyl)-2,2-dimethyloxazolidine), which is also known as furilazole in or on the following corn commodities: (fodder, forage and grain) at 0.01 parts per million (ppm). The tolerances will expire on February 25, 2002.

Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....”

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides based primarily on toxicological studies using laboratory animals. These studies address many adverse health effects, including (but not limited to) reproductive effects, developmental toxicity, toxicity to the nervous system, and carcinogenicity. Second, EPA examines exposure to the pesticide through the diet (e.g., food and drinking water) and through exposures that occur as a result of pesticide use in residential settings. For further discussion of the regulatory requirements of section 408 and a complete description of the risk assessment process, see the final rule on Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997)

Consistent with section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2), for a tolerance for residues of furilazole on corn commodities (grain, forage, and stover) at 0.01 ppm. EPA's assessment of the dietary exposures and risks associated with establishing the tolerance follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The nature of the toxic effects caused by furilazole are discussed in this unit.

1. Acute toxicity . Six acute toxicity studies were conducted and the results are summarized as follows:

i. Oral . In the acute oral toxicity study for rats, the LD 50 was equal to 521 mg/kg in males and was classified as Toxicity Category III.

ii. Dermal. In the acute dermal toxicity study for rats, the LD 50 was equal to >5,000 mg/kg and was classified as Toxicity Category IV.

iii. Inhalation. In the acute inhalation, toxicity study for rats, the LC 50 was equal to >2.3 mg/L and was classified as Toxicity Category IV.

iv. Primary eye irritation. In a primary eye irritation study in rabbits, furilazole was found to be a mild irritant and is classified as Toxicity Category III.

v. Primary skin irritation . In a primary skin irritation study in rabbits, furilazole was found to be a negligible irritant and is classified as Toxicity Category IV.

vi. Dermal sensitization. In a dermal sensitization study furilazole was not a sensitizer.

2. Subchronic and chronic toxicity . This section summarizes the results of subchronic, and chronic toxicity studies in animals.

i. Subchronic toxicity . In a 3-month rat feeding study, the no observed adverse effect level (NOAEL) is 100 ppm (7 mg/kg/day for males and females) and the lowest observed adverse effect level (LOAEL) is 500 ppm (34 mg/kg/day for males and 38 mg/kg/day for females) based on the increased absolute liver weight in males, increased liver-to-body weight ratio in males and females, and increased levels of gamma glutamyltransferase in females.

In a 90-day dog study, the NOAEL is 5 mg/kg/day. The LOAEL for this study is 15 mg/kg/day based on bile duct inflammation in one female and decreased body weight gain in females.

In a 21-day dermal toxicity study, the NOAEL for systemic effects in both sexes is " 1,000 mg/kg, the limit dose. A LOAEL was not established.

ii. Chronic toxicity . In a 2-year rat feeding chronic toxicity/carcinogenicity study, the NOAEL for chronic toxicity is 5 ppm (0.26 mg/kg/day) for males and 100 ppm (6.03 mg/kg/day) for females. The LOAEL is 100 ppm (5.05 mg/kg/day) for males based on significantly increased absolute and/or relative liver and kidney weights. The LOAEL is 1,000 ppm (61 mg/kg/day) for females based on significantly increased absolute and/or relative liver and kidney weight, kidney nephropathy, increased GGT, decreased body weight gain, and a moderate increase in non-neoplastic liver lesions (eosinophilic focus, cystic degeneration, and telangiectasis). Under the conditions of this study, furilazole appeared to be carcinogenic in both sexes.

In an 18-month mouse dietary carcinogenicity study, the NOAEL for systemic toxicity is 40 ppm (5.9 mg/kg/day) for males and 400 ppm (92.0 mg/kg/day) for females. The systemic toxicity LOAEL in males is 400 ppm (60.2 mg/kg/day) based on increased incidence of mortality and elevated alanine aminotransferase. The systemic toxicity LOAEL in females was 1,250 ppm (289.5 mg/kg/day), based on increased liver weight, increased incidence of hepatocellular hypertrophy of the panlobular area, and chronic inflammation of the lungs. At the doses tested, there was a treatment-related increase in tumor incidence.

3. Developmental toxicity . In a developmental toxicity study in rats, the maternal toxicity NOAEL is 10 mg/kg/day and the maternal toxicity LOAEL is 75 mg/kg/day based on increased liver weight. The developmental toxicity NOAEL is 10 mg/kg/day and the developmental LOAEL is 75 mg/kg/day based on increased number of resorptions.

4. Reproductive toxicity . In a two-generation reproduction study in rats, the NOAEL for systemic toxicity is 150 ppm (8.97 mg/kg/day in males and 10.67 mg/kg/day in females). The LOAEL for systemic toxicity is 1,500 ppm (92.39 mg/kg/day in males and 106.42 mg/kg/day in females) based on decreased body weight gains in the adults and offspring of both generations and microscopic lesions of the liver in F 0 and F 1 males and females and kidneys of F 0 females and F 1 males and females. The NOAEL for reproductive toxicity is " 1,500 ppm (" 92.39 mg/kg/day in males and " 106.42 mg/kg/day, in females), the highest dose tested. The reproductive toxicity LOAEL was not determined.

5. Mutagenicity . Furilazole induced a weak positive response for inducing reverse gene mutations at high precipitating doses in Salmonella typhimurium but was negative in cultured mammalian cells. Furilazole was also negative for the induction of micronuclei in the bone marrow cells of mice and negative for the induction of unscheduled DNA synthesis (UDS) in rat primary hepatocytes.

1. Acute dietary toxicity . For an acute dietary risk assessment, for females ages 13-50 years, the Agency selected a developmental toxicity NOAEL of 10 mg/kg/day from a developmental toxicity study in rats. The developmental toxicity LOAEL of 75 mg/kg/day for this developmental study was based on increased resorptions.

For an acute dietary risk assessment for the general population including infants and children, the Agency selected a maternal toxicity NOAEL of 75 mg/kg/day from a developmental toxicity study in the rat. The maternal toxicity LOAEL of 175 mg/kg/day for this study was based on decreased maternal body weight.

2. Dermal toxicity . For a short-term dermal risk assessment, the Agency selected a NOAEL of 10 mg/kg/day from a developmental toxicity study in rats. The LOAEL of 75 mg/kg/day for this study was based on increased resorptions. Since an oral NOAEL was selected for dermal risk assessment a dermal absorption factor (30%) was used.

For an intermediate-term dermal risk assessment the Agency selected a NOAEL of 7 mg/kg/day from a 90-day feeding study in rats. The LOAEL of 34 mg/kg/day for males and 38 mg/kg/day for females for this study was based on increased absolute liver weights in males, increased liver-to-body weight ratio in males and females, and increased gamma glutamyltransferase in females. Since an oral NOAEL was selected for dermal risk assessment a dermal absorption factor (30%) was used.

A long-term dermal exposure scenario is not required for this use since furilazole is applied once per year.

3. Chronic dietary toxicity . For a chronic dietary risk assessment, the Agency selected a NOAEL of 0.26 mg/kg/day from the chronic toxicity/carcinogenicity study in rats. The LOAEL of 5.05 mg/kg/day was based on significantly increased absolute and/or relative liver and kidney weights in males.

4. Carcinogenicity . EPA has classified furilazole as “likely to be carcinogenic to humans” by the oral route in accordance with the EPA Proposed Guidelines for Carcinogen Risk Assessment (April 10, 1996), based on multiple tumors seen at multiple sites in two species including both benign and malignant liver tumors in male and female rat and mice, rare tumors such as stomach and testicular tumors in male rats, and lung tumors in both sexes of mice. A Q 1 * was calculated to be 8.22 × 10 -2 (mg/kg/day) -1 based on male mouse bronchiolar-alveolar adenoma and/or carcinoma combined tumor rates.

5. Inhalation toxicity . For a short-term inhalation risk assessment the Agency selected an oral NOAEL of 10 mg/kg/day from the developmental toxicity study in rats. The LOAEL of 75 mg/kg/day was based on increased resorptions.

For the intermediate-term risk assessment, the Agency selected a NOAEL of 7 mg/kg/day from a 90 day feeding study in rats as the endpoint. The LOAEL of 34 mg/kg/day for males and 38 mg/kg/day for females for this study was based on increased absolute liver weights in males, increased liver-to-body weight ratio in males and females, and increased gamma glutamyltransferase in females.

A long-term inhalation exposure scenario is not required for this use, since furilazole is applied once per year.

6. Dermal penetration . A dermal absorption factor of 30% was extrapolated by the Agency from a developmental toxicity study and a 21-day dermal toxicity study both in the rat, where effects on liver weights were seen by both routes of exposure. In the developmental toxicity study in the rat, increased liver weight was seen at the maternal toxicity LOAEL of 75 mg/kg/day. In the 21-day dermal toxicity study in the rat, adaptive effects on liver weights were seen at 250 mg/kg/day and are indicative of absorption. The Agency determined a dermal absorption ratio of 75/250 or 30%.

7. Safety (uncertainty) factors, including FQPA safety factor . The Agency will use the above NOAELs and LOAELs to assess the risks of using furilazole to the general population and certain subgroups of the general population. However, the Agency first modifies these values numerically, downward, by dividing the NOAEL by two or more safety factors. The standard safety (uncertainty) factors used are: a tenfold factor to account for intraspecies variability (the differences in how the test animals reacted to the test substance), and a tenfold factor to account for interspecies variation (the use of animal studies to predict human risk).

FFDCA section 408 provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and post-natal toxicity and the completeness of the data base unless EPA determines that a different margin of safety will be safe for infants and children. As noted, the Agency has used an additional 10-fold safety factor for the acute dietary assessment for females 13-50 only.

The basis for this conclusion is that in the rat development toxicity study, although the NOAELs and LOAELs for maternal and developmental toxicity were the same, there does appear to be an increased severity of developmental effects in comparison to maternal effects. Increased resorptions (or death of fetuses) seen at the LOAEL is a more severe effect than increased maternal liver weight seen at the same level. Additionally, the database is incomplete since there is a data gap for a developmental toxicity study in rabbits.

i. Acute dietary toxicity (females 13-50) . For an acute dietary risk assessment for females ages 13-50 years old the Agency divided the NOAEL of 10 mg/kg/day from a developmental toxicity study in the rat by an uncertainty factor of 1,000 (10x for interspecies difference, 10x for intraspecies variations, and 10x safety factor to address additional susceptibility in fetus and data gaps). The acute Population Adjusted Dose (aPAD) is 0.010 mg/kg/day.

ii. Acute dietary toxicity (general population and infants and children) . For an acute dietary risk assessment (general population and infants and children ) the Agency divided the NOAEL of 75 mg/kg/day from the developmental rat study by an uncertainty factor of 100 (10x for interspecies difference, 10x for intraspecies variations and 1x for FQPA safety factor). The aPAD is 0.75 mg /kg/day

iii. Chronic toxicity . For a chronic dietary risk assessment the Agency divided the NOAEL of 0.26 mg/kg/day from a 2-year combined chronic toxicity/carcinogenicity study in the rat by an uncertainty factor of 300 (10x for interspecies differences, 10x for intraspecies variations and 3x for lack of chronic toxicity study in the dog and 1x for FQPA safety factor). The chronic Population Adjusted Dose (cPAD) is 0.0009 mg/kg/day.

1. From food and feed uses . Time-limited tolerances were previously established (40 CFR 180.471) for the residues of furilazole, in or on corn commodities (grain, forage, and fodder) at 0.01 ppm. Risk assessments were conducted by EPA to assess dietary exposures from furilazole as follows:

i. Acute exposure and risk . Acute dietary risk assessments are performed for a food-use pesticide if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. An acute dietary risk assessment was performed for furilazole. The acute dietary analysis for furilazole is a conservative estimate of dietary exposure from food, or Tier 1 assessment, with the use of tolerance level residues for all corn commodities at 0.01 ppm, and 100 percent crop treated (PCT) information. The Agency's level of concern is for acute dietary exposures greater than 100% aPAD. The acute dietary exposure analysis was performed for the U.S. population and 26 subgroups. Acute estimates of the per capita dietary exposures from food at the 95 th percentile for the U.S. population and all subgroups are <1% aPAD which is less than the Agency's level of concern.

ii. Chronic exposure and risk . A chronic dietary risk assessment was performed for furilazole. The chronic dietary analysis for furilazole is a refined estimate, or Tier 3 assessment, with the use of anticipated residues (ARs) (calculated from field trial data using half the level of quantitation) for all commodities and PCT information. EPA's level of concern is for chronic dietary exposures greater than 100% cPAD. For the U.S. population and all subgroups, including infants and children, <1% of the cPAD is occupied by dietary (food) exposure. The results of this analysis indicate that the estimated chronic dietary risk associated with the use of furilazole on corn is below EPA's level of concern.

iii. Carcinogenic exposure and risk . A cancer dietary risk assessment was performed. ARs and PCT were used to calculate the upper bound lifetime risk for dietary exposure to furilazole. EPA generally considers 1 × 10 -6 as negligible risk (i.e, less than 1 in 1 million) for cancer. The results of this analysis indicate that the cancer dietary risk of 7.2 × 10 -8 associated with the use of furilazole on corn is below the Agency's level of concern.

iv. Use of anticipated residues and percent crop treated information. Section 408(b)(2)(E) authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide chemicals that have been measured in food. If EPA relies on such information, EPA must require that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. Following the initial data submission, EPA is authorized to require similar data on a time frame it deems appropriate. As required by section 408(b)(2)(E), EPA will issue a data call-in for information relating to anticipated residues to be submitted no later than 5 years from the date of issuance of this tolerance.

Section 408(b)(2)(F) states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if the Agency can make the following findings: Condition 1, that the data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain such pesticide residue; Condition 2, that the exposure estimate does not underestimate exposure for any significant subpopulation group; and Condition 3, if data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area. In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of percent crop treated (PCT) as required by section 408(b)(2)(F), EPA may require registrants to submit data on PCT.

The Agency used PCT information as follows: For the acute dietary risk assessment, the Agency assumed 100% crop treated i.e, that the entire crop was treated. For chronic (non-cancer and cancer) dietary analyses it was assumed that 25% of the corn was treated.

For assessing chronic dietary risk, the Agency believes that the three conditions listed above have been met. With respect to Condition 1, it was assumed that 25% of the corn was treated. The petitioner supplied the percent crop treated data to the Agency. The information was based on the amount of acetochlor since furilazole is used as a safener with acetochlor to treat corn. The Agency reviewed the estimate and found it to be reasonable. The Agency is reasonably certain that the percentage of the food treated is not likely to be underestimated. As to Conditions 2 and 3, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available information on the regional consumption of food to which furilazole may be applied in a particular area.

2. From drinking water—

i. Chemical specific information. Based on laboratory data, furilazole and its principal degradates show low to moderate persistence and high mobility. Furilazole is stable against simple hydrolysis. Photolysis and soil metabolism are its main routes of transformation. “Half-lives' for parent in the laboratory vary from 8 days to 95 days. Furilazole is likely to be highly mobile. Bioconcentration is not expected. Major degradates identified included N (dichloroacetyl) glycine, furilazole oxazolidine acid, and furilazole oxamic acid. These degradates could be produced in soil and natural waters.

ii. Ground water . The Agency used its SCI-GROW (Screening Concentration in Ground Water) screening model and environmental fate data to determine the estimated environmental concentrations (EECs) of furilazole in ground water. SCI-GROW is an empirical model based upon actual ground water monitoring data collected for the registration of a number of pesticides that serve as benchmarks for the model. The current version of SCI-GROW appears to provide realistic estimates of pesticide concentrations in shallow, highly vulnerable ground water sites (i.e., sites with sandy soils and depth to ground water of 10 to 20 feet). The SCI-GROW ground water screening concentration is 0.019 ppb.

iii. Surface water. The Agency used its PRZM (Pesticide Root Zone Model)/EXAMS (Exposure Analysis Modeling System) screening model and environmental fate data to determine the EECs of furilazole in surface water. PRZM/EXAMS simulates a 1 hectare by 2 meter deep edge-of-the-field farm pond which receives pesticide runoff from a treated 10 hectare field. PRZM/EXAMS can overestimate true pesticide concentrations in drinking water. It has certain limitations and is not the ideal tool for use in drinking water risk assessments. However, it can be used in screening calculations and does provide an upper bound on the concentration of pesticide that can be found in drinking water.

Using the PRZM/EXAMS model and available environmental fate data, EPA calculated the following Tier 2 EECs for furilazole:

Acute (Peak) EEC: 1.007 ppb

Mean (chronic) EEC: 0.214 ppb

A Drinking Water Level of Comparison (DWLOC) is a theoretical upper limit on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food, drinking water, and through residential uses. A DWLOC will vary depending on the toxic endpoint, drinking water consumption, body weights, and pesticide uses. Different populations will have different DWLOCs. EPA uses DWLOCs internally in the risk assessment process as a surrogate measure of potential dietary exposure associated with pesticide exposure through drinking water. In the absence of monitoring data for pesticides, it is used as a point of comparison against conservative model estimates of a pesticide's concentration in water. DWLOC values are not regulatory standards for drinking water.

It is current Agency policy that the following subpopulations be addressed when calculating drinking water levels of comparison U.S. population (48 States), any other adult populations whose %PAD is greater than that of the U.S. population, and the Female and Infant/Children subgroups (1 each) with the highest food exposure. The subgroups which are listed below are those which fall into these categories.

iv. Acute exposure and risk . Based on the acute dietary exposure estimates from food, acute drinking water levels of comparison for furilazole were calculated to be 26,250 ppb for the U.S. population, 26,250 ppb for Non-Hispanic Blacks, 7,500 ppb for non-nursing infants (<1 year), and 300 ppb for Females (13-19 yrs/np/nn).

v. Chronic (non-cancer) exposure and risk . Based on the chronic dietary exposure estimates from food, chronic drinking water levels of comparison for furilazole were calculated, and are summarized below:

U.S. population (48 States): 31 ppb

Females 13-50 years: 27 ppb

Children (non nursing infants): 9 ppb

vi. Carcinogenic exposure and risk. Based on the carcinogenic dietary exposure estimates from food, a carcinogenic drinking water level of comparison for furilazole in water was calculated to be 0.36 ppb for the U.S. Population (48 States).

vii. Drinking water risks. The modeled groundwater and surface water concentrations are less than the DWLOCs for furilazole in drinking water for acute, chronic (non-cancer) and cancer aggregate exposures. Thus, the Agency is able to screen out furilazole drinking water risks.

3. From non-dietary exposure . There are no currently registered residential uses for furilazole. Therefore a non-dietary assessment was not performed.

4. Cumulative exposure to substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” The Agency believes that “available information” in this context might include not only toxicity, chemistry, and exposure data, but also scientific policies and methodologies for understanding common mechanisms of toxicity and conducting cumulative risk assessments. For most pesticides, although the Agency has some information in its files that may turn out to be helpful in eventually determining whether a pesticide shares a common mechanism of toxicity with any other substances, EPA does not at this time have the methodologies to resolve the complex scientific issues concerning common mechanism of toxicity in a meaningful way. EPA has begun a pilot process to study this issue further through the examination of particular classes of pesticides. The Agency hopes that the results of this pilot process will increase the Agency's scientific understanding of this question such that EPA will be able to develop and apply scientific principles for better determining which chemicals have a common mechanism of toxicity and evaluating the cumulative effects of such chemicals. The Agency anticipates, however, that even as its understanding of the science of common mechanisms increases, decisions on specific classes of chemicals will be heavily dependent on chemical specific data, much of which may not be presently available.

Although at present the Agency does not know how to apply the information in its files concerning common mechanism issues to most risk assessments, there are pesticides as to which the common mechanism issues can be resolved. These pesticides include pesticides that are toxicologically dissimilar to existing chemical substances (in which case the Agency can conclude that it is unlikely that a pesticide shares a common mechanism of activity with other substances) and pesticides that produce a common toxic metabolite (in which case common mechanism of activity will be assumed).

EPA does not have, at this time, available data to determine whether furilazole (3-dichloroacetyl-5-(2-furanyl)-2,2-dimethyloxazolidine) has a common mechanism of toxicity with other substances or how to include this pesticide in a cumulative risk assessment. Furilazole is structurally related to chloroacetanilides such as alachlor and acetochlor. However at this time the Agency has not yet made a final decision concerning a possible common mechanism of toxicity for the chloroacetanilides. For the purposes of this tolerance action, therefore, EPA has not assumed that furilazole has a common mechanism of toxicity with other substances.

1. Acute risk . For the U.S. population and all subgroups, including infants and children, < 1% of the aPAD is occupied by exposure through food, which is below EPA's level of concern of 100%. The estimated acute concentrations of furilazole in surface and ground water are less than EPA's levels of comparison for furilazole in drinking water. Therefore, EPA does not expect the aggregate risk to exceed 100% of the aPAD.

2. Chronic (non-cancer) risk . Since there are no residential uses for furilazole, the chronic (non-cancer) aggregate exposure includes only food and water. For the U.S. population and all subgroups, including infants and children, < 1% of the cPAD is occupied by exposure through food which is below EPA's level of concern of 100%. The estimated average concentrations of furilazole in surface and ground water are less than EPA's levels of comparison for furilazole in drinking water. Therefore, EPA does not expect the aggregate risk to exceed 100% of the cPAD.

3. Short-and intermediate-term risk . Short-and intermediate-term aggregate exposure takes into account chronic dietary food and water (considered to be a background exposure level) plus indoor and outdoor residential exposure. Since there are no residential uses or exposure scenarios, short, intermediate, and long-term aggregate risk assessments were not conducted.

4. Aggregate cancer risk for U.S. population . For the U.S. population, the cancer dietary risk from food of 7.2 × 10 -8 from food exposure is below the Agency's level of concern for excess lifetime cancer risk. The estimated average concentrations of furilazole in surface and ground water are less than EPA's drinking water level of comparison for furilazole in drinking water. Therefore, EPA does not expect aggregate risk to exceed 1 × 10 -6 as negligible risk (i.e., less than 1 in 1 million).

5. Determination of safety . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result from aggregate exposure to furilazole residues.

1. Safety factor for infants and children —i. In general . In assessing the potential for additional sensitivity of infants and children to residues of furilazole, EPA considered data from a developmental toxicity study in the rat and a 2-generation reproduction study in the rat. The developmental toxicity studies are designed to evaluate adverse effects on the developing organism resulting from maternal pesticide exposure during gestation. Reproduction studies provide information relating to effects from exposure to the pesticide on the reproductive capability of mating animals and data on systemic toxicity. The Agency is requiring a developmental toxicity study in the rabbit.

FFDCA section 408 provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA determines that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a margin of exposure (MOE) analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans. EPA believes that reliable data support using the standard uncertainty factor (usually 100 for combined interspecies and intraspecies variability) and the additional 3-fold uncertainty factor, as described above, when EPA has a complete data base under existing guidelines and when the severity of the effect in infants or children or the potency or unusual toxic properties of a compound do not raise concerns regarding the adequacy of the standard MOE/safety factor.

ii. Conclusion . There is not a complete toxicity data base for furilazole. EPA concluded that the 10x safety factor should be retained and is applicable to females 13-15 years only. This decision was based on the following: (a) There is a data gap for a developmental toxicity study in rabbits; and (b) There is evidence of qualitative increased susceptibility in the developmental toxicity study in rats. Increased resorptions (or death of fetuses) seen at the LOAEL is a more severe effect than increased maternal liver weight seen at the same level.

2. Acute risk . For infants and children, < 1% of the aPAD is occupied by dietary exposure through food which is below EPA's level of concern of 100%. The estimated acute concentrations of furilazole in surface and ground water are less than EPA's levels of comparison for furilazole in drinking water. Therefore, EPA does not expect the aggregate risk to exceed 100% of the aPAD.

3. Chronic (non-cancer) risk . Using the exposure assumptions previously described, EPA has concluded that aggregate exposure to furilazole from food will utilize less than 1 percent of the cPAD for infants and children. EPA generally has no concern for exposures below 100% of the cPAD because the cPAD represents the level at or below which daily aggregate dietary exposure over a lifetime will not pose appreciable risks to human health. The estimated average concentrations of furilazole in surface and ground water are less than EPA's levels of comparison for furilazole in drinking water. Therefore, EPA does not expect the aggregate risk to exceed 100% of the cPAD.

4. Short- or intermediate-term risk . Since there are no residential uses or exposure scenarios, short, intermediate, and long-term aggregate risk assessments were not conducted.

5. Determination of safety . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to furilazole residues.

FQPA requires EPA to develop a screening program to determine whether certain substances (including all pesticides and inerts or inactive ingredients) “may have an effect in humans that is similar to an effect produced by a naturally occurring estrogen, or such other endocrine effect...” EPA has been working with interested stakeholders to develop a screening and testing program as well as a priority setting scheme. As the Agency proceeds with implementation of this program, further testing of products containing furilazole (3-dichloroacetyl-5-(2-furanyl)-2,2-dimethyloxazolidine) for endocrine effects may be required.

The nature of the residue in corn was found to be understood based on submitted greenhouse and field metabolism studies. It was concluded that there is possible incorporation into natural plant components. The only residue of concern is parent furilazole.

An adequate enforcement method (capillary gas chromatography using electron capture detection) is available to enforce the tolerance expression. The method may be requested from: Calvin Furlow, PRRIB, IRSD (7502C), Office of Pesticide Programs, Environmental Protection Agency, Ariel Rios Bldg., 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 305-5229; e-mail address: furlow.calvin@epa.gov.

Field trials on field corn were conducted and the data submitted. The submitted data support the time-limited tolerance level of 0.01 ppm for corn (grain stover, forage).

There are no CODEX, Canadian or Mexican limits for residues of furilazole in corn raw agricultural commodities.

EPA has determined that a plantback interval of 30 days for furilazole is supported by the data.

Therefore, time-limited tolerances are established for residues of the inert ingredient herbicide safener 3-dichloroacetyl-5-(2-furanyl)-2,2-dimethyloxazolidine), which is also known as furilazole in or on corn commodities, (grain, forage, and stover), at 0.01 ppm. The tolerances will expire and be revoked on February 25, 2002. The following residue chemistry data gaps have been identified for furilazole: (1) Animal metabolism studies (OPPTS GLN 860.1300), (2) radiovalidation and specificity studies for the analytical enforcement method for plants, (3) an additional 10 field trials (OPPTS GLN 860.1500). The following toxicology data gaps have been identified for furilazole (1) Chronic Toxicity (dog) (OPPTS GLN 870.4100), (2) Developmental Toxicity (rabbit) (OPPTS GLN 870.3700), (3) General Metabolism (870.7485) and (4) in vitro cytogenetic assay (OPPTS GLN 870.6375). These datagaps must be addressed to establish permanent tolerances. These tolerances are being established on a time-limited basis due to an incomplete database.

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA of 1996, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) provides essentially the same process for persons to “object' to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d), as was provided in the old FFDCA sections 408 and 409. However, the period for filing objections is now 60 days, rather than 30 days.

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-300968 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before April 24, 2000.

1. Filing the request . Your objection must specify the specific provisions in the regulation that you object to, and the grounds for the objections (40 CFR 178.25). If a hearing is requested, the objections must include a statement of the factual issues(s) on which a hearing is requested, the requestor's contentions on such issues, and a summary of any evidence relied upon by the objector (40 CFR 178.27). Information submitted in connection with an objection or hearing request may be claimed confidential by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. A copy of the information that does not contain CBI must be submitted for inclusion in the public record. Information not marked confidential may be disclosed publicly by EPA without prior notice.

Mail your written request to: Office of the Hearing Clerk (1900), Environmental Protection Agency, Ariel Rios Bldg., 1200 Pennsylvania Ave., NW., Washington, DC 20460. You may also deliver your request to the Office of the Hearing Clerk in Rm. C400, Waterside Mall, 401 M St., SW., Washington, DC 20460. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 260-4865.

2. Tolerance fee payment . If you file an objection or request a hearing, you must also pay the fee prescribed by 40 CFR 180.33(i) or request a waiver of that fee pursuant to 40 CFR 180.33(m). You must mail the fee to: EPA Headquarters Accounting Operations Branch, Office of Pesticide Programs, P.O. Box 360277M, Pittsburgh, PA 15251. Please identify the fee submission by labeling it “Tolerance Petition Fees.”

EPA is authorized to waive any fee requirement “when in the judgement of the Administrator such a waiver or refund is equitable and not contrary to the purpose of this subsection.” For additional information regarding the waiver of these fees, you may contact James Tompkins by phone at (703) 305-5697, by e-mail at tompkins.jim@epa.gov, or by mailing a request for information to Mr. Tompkins at Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, Ariel Rios Bldg., 1200 Pennsylvania Ave., NW., Washington, DC 20460.

If you would like to request a waiver of the tolerance objection fees, you must mail your request for such a waiver to: James Hollins, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, Ariel Rios Bldg., 1200 Pennsylvania Ave., NW., Washington, DC 20460.

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit VI.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket control number OPP-300968, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, Ariel Rios Bldg., 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 file format or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).

This final rule establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any prior consultation as specified by Executive Order 13084, entitled Consultation and Coordination with Indian Tribal Governments (63 FR 27655, May 19, 1998); special considerations as required by Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or require OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq .) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on 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, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.' “Policies that have federalism implications' is defined in the Executive Order to include regulations that 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.' This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the Federal Register . This final rule is not a “major rule' as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

You may be affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in the table could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this action might apply to certain entities. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT.

1. Electronically. You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. To access this document, on the Home Page select “Laws and Regulations” and then look up the entry for this document under the “ Federal Register —Environmental Documents.” You can also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/.

2. In person. The Agency has established an official record for this action under docket control number OPP-300970. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall 2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

In the Federal Register of March 17, 1999 (64 FR 13192) (FRL-6066-7), EPA issued a notice pursuant to section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, as amended by the Food Quality Protection Act (FQPA) (Public Law 104-170) announcing the filing of pesticide tolerance petitions (PP 8E4987, 8E4988, and 8E4989 ) by Uniqema, formerly ICI Surfactants, 3411 Silverside Road, Box 8340 Wilmington, DE 19803. This notice included a summary of the petitions prepared by the petitioner. There were no comments received in response to the notice of filing.

Pesticide petitions 8E4987, 8E4988 and 8E4989 requested that 40 CFR 180.1001(c) be amended by revising the existing tolerance exemptions for methyl methacrylate-methacrylic acid-monomethoxypolyethylene glycol methacrylate copolymer (CAS Reg. No. 119724-54-8); 12-hydroxystearic acid-polyethylene glycol copolymer (CAS Reg. No. 70142-34-6) and polyethylene glycol-polyisobutenyl anhydride-tall oil fatty acid copolymer (CAS Reg. No. 68650-28-2), and that 40 CFR 180.1001(e) be amended by establishing an exemption from the requirement of a tolerance for residues of these copolymers.

Section 408(c)(2)(A)(i) of the FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(c)(2)(A)(ii) defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing an exemption from the requirement of a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue...” and specifies factors EPA is to consider in establishing an exemption.

Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In the case of certain chemical substances that are defined as polymers, the Agency has established a set of criteria to identify categories of polymers that should present minimal or no risk. The definition of a polymer is given in 40 CFR 723.250(b). The following exclusion criteria for identifying these low risk polymers are described in 40 CFR 723.250(d).

1. The polymers, acrylic graft copolymer; polyester block copolymer and polyester random copolymer are not cationic polymers nor are they reasonably anticipated to become cationic polymers in a natural aquatic environment.

2. The polymers contain as an integral part of their composition the atomic elements carbon, hydrogen, and oxygen.

3. The polymers do not contain as an integral part of their composition, except as impurities, any element other than those listed in 40 CFR 723.250(d)(2)(ii).

4. The polymers are neither designed nor can they be reasonably anticipated to substantially degrade, decompose, or depolymerize.

5. The polymers are manufactured or imported from monomers and/or reactants that are already included on the TSCA Chemical Substance Inventory or manufactured under an applicable TSCA section 5 exemption.

6. The polymers are not water absorbing polymers with number average molecular weights (MW) greater than or equal to 10,000 daltons. Additionally, the polymers, acrylic graft copolymer; polyester block copolymer and polyester random copolymer, also meet as required the following exemption criteria specified in 40 CFR 723.250(e).

7. The polymer's number average molecular weights (MW) of 2,730, 3,690, and 2,960, respectively are greater than 1,000 and less than 10,000 daltons. The polymers contain less than 10% oligomeric material below MW 500 and less than 25% oligomeric material below MW 1,000, and the polymers do not contain any reactive functional groups.

Thus, the polymers acrylic graft copolymer; polyester block copolymer and polyester random copolymer meet all the criteria to be considered low risk polymers under 40 CFR 723.250. Based on their conformance to the above criteria, no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to acrylic graft copolymer; polyester block copolymer and polyester random copolymer.

For the purposes of assessing potential exposure under these exemptions, EPA considered that acrylic graft copolymer; polyester block copolymer and polyester random copolymer could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The number average MWs of acrylic graft copolymer; polyester block copolymer and polyester random copolymer are 2,730, 3,690 and 2,960 daltons, respectively. Generally, polymers the size of these would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since acrylic graft copolymer; polyester block copolymer and polyester random copolymer conform to the criteria that identify a low risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. Since the Agency has determined that there is a reasonable certainty that no harm will result from aggregate exposure to acrylic graft copolymer; polyester block copolymer or polyester random copolymer a tolerance is not necessary.

Section 408 (b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance or tolerance exemption, the Agency consider “available information” concerning the cumulative effects of a particular chemical's residues and “other substances that have a common mechanism of toxicity.” The Agency has not made any conclusions as to whether or not acrylic graft copolymer; polyester block copolymer or polyester random copolymer share a common mechanism of toxicity with any other chemicals. However, acrylic graft copolymer; polyester block copolymer and polyester random copolymer conform to the criteria that identify a low risk polymer. Due to the expected lack of toxicity based on the above conformance, the Agency has determined that a cumulative risk assessment is not necessary.

Based on the conformance to the criteria used to identify a low risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population from aggregate exposure to residues of acrylic graft copolymer; polyester block copolymer or polyester random copolymer.

FFDCA section 408 provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA concludes that a different margin of safety will be safe for infants and children. Due to the expected low toxicity of acrylic graft copolymer; polyester block copolymer and polyester random copolymer, EPA has not used a safety factor analysis to assess the risk. For the same reasons the additional tenfold safety factor is unnecessary.

There is no available evidence that acrylic graft copolymer; polyester block copolymer or polyester random copolymer are endocrine disruptors.

Currently in 40 CFR 180.1001(c) methyl methacrylate-methacrylic acid-monomethoxypolyethylene glycol methacrylate copolymer minium number average molecular weight (in amu) 18,000; 12-hydroxystearic acid-polyethylene glycol copolymer (CAS Number 70142-34-6) minium number average molecular weight (in amu) 5,000; and polyethylene glycol-polyisobutenyl anhydride-tall oil fatty acid copolymer minium number average molecular weight (in amu) 5,000 are all exempt from the requirement of a tolerance when used as a surfactant, dispersing agent, suspending agent, or related adjuvants.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

The Agency is not aware of any country requiring a tolerance for acrylic graft copolymer; polyester block copolymer or polyester random copolymer nor have any CODEX Maximum Residue Levels (MRLs) been established for any food crops at this time.

Accordingly, EPA finds that exempting methyl methacrylate-methacrylic acid-monomethoxypolyethylene glycol methacrylate copolymer (CAS Reg. No. 119724-54-8) minium number average molecular weight (in amu) 2,730; 12-hydroxystearic acid-polyethylene glycol copolymer (CAS Reg. No. 70142-34-6); and polyethylene glycol-polyisobutenyl anhydride-tall oil fatty acid copolymer (CAS Reg. No. 68650-28-2) from the requirement of a tolerance will be safe.

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA of 1996, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) provides essentially the same process for persons to “object” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d), as was provided in the old FFDCA sections 408 and 409. However, the period for filing objections is now 60 days, rather than 30 days.

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-300970 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before April 24, 2000.

1. Filing the request. Your objection must specify the specific provisions in the regulation that you object to, and the grounds for the objections (40 CFR 178.25). If a hearing is requested, the objections must include a statement of the factual issues(s) on which a hearing is requested, the requestor's contentions on such issues, and a summary of any evidence relied upon by the objector (40 CFR 178.27). Information submitted in connection with an objection or hearing request may be claimed confidential by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. A copy of the information that does not contain CBI must be submitted for inclusion in the public record. Information not marked confidential may be disclosed publicly by EPA without prior notice.

Mail your written request to: Office of the Hearing Clerk (1900), Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460. You may also deliver your request to the Office of the Hearing Clerk in Rm. M3708, 401 M Street, SW., Washington, DC 20460. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 260-4865.

2. Tolerance fee payment. If you file an objection or request a hearing, you must also pay the fee prescribed by 40 CFR 180.33(i) or request a waiver of that fee pursuant to 40 CFR 180.33(m). You must mail the fee to: EPA Headquarters Accounting Operations Branch, Office of Pesticide Programs, P.O. Box 360277M, Pittsburgh, PA 15251. Please identify the fee submission by labeling it “Tolerance Petition Fees.”

EPA is authorized to waive any fee requirement “when in the judgement of the Administrator such a waiver or refund is equitable and not contrary to the purpose of this subsection.” For additional information regarding the waiver of these fees, you may contact James Tompkins by phone at (703) 305-5697, by e-mail at tompkins.jim@epa.gov , or by mailing a request for information to Mr. Tompkins at Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460.

If you would like to request a waiver of the tolerance objection fees, you must mail your request for such a waiver to: James Hollins, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Avenue NW, M St., SW., Washington, DC 20460.

3. Copies for the Docket. In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit XI.A.1., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket control number OPP-300970, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov . Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 file format or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).

This final rule establishes exemptions from the tolerance requirement under FFDCA section 408(d) in response to petitions submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any prior consultation as specified by Executive Order 13084, entitled Consultation and Coordination with Indian Tribal Governments (63 FR 27655, May 19, 1998); special considerations as required by Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or require OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on 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, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4).

The Congressional Review Act, 5 U.S.C. 801 et seq ., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

You may be affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in the table could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this action might apply to certain entities. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under “FOR FURTHER INFORMATION CONTACT.”

1. Electronically. You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. To access this document, on the Home Page select “Laws and Regulations” and then look up the entry for this document under the “ Federal Register —Environmental Documents.” You can also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/.

2. In person. The Agency has established an official record for this action under docket control number OPP-300975. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall 2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

EPA issued a final rule, published in the Federal Register of August 25, 1998 (63 FR 45176) (FRL-6021-6), which announced that on its own initiative under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a and (l)(6), as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170) it established time-limited tolerances for the residues of phosphine resulting from the use of the rodenticide zinc phosphide in or on alfalfa (forage, hay) at 0.1 ppm, with an expiration date of February 1, 2000. EPA established the tolerances because section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under FIFRA section 18. Such tolerances can be established without providing notice or period for public comment.

EPA, subsequently, issued a final rule, published in the Federal Register of July 28, 1999 (64 FR 40769) (FRL-6090-9), which announced that on its own initiative under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170) it extended the time-limited tolerance for the residues of phosphine resulting from the use of the rodenticide zinc phosphide in or on alfalfa (forage, hay) at 0.1 ppm, with an expiration date of August 1, 2001. EPA established the tolerance because section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Such tolerances can be established without providing notice or period for public comment.

EPA received a request to extend and amend the use of zinc phosphide on alfalfa for this year's growing season due to the need in California to control voles which feed both on the root system and the above ground portion of plants. Feeding by voles opens up alfalfa stands for weed invasion, devitalizes crop stands, and reduces stand longevity. The currently available methods of control, including the use of zinc phosphide bait boxes and flood irrigation, are inadequate and impractical; and that if growers cannot use zinc phosphide significant economic losses will occur this year. Predictions are that losses could reach $10 million. After having reviewed the submission, EPA concurs that emergency conditions exist. EPA has authorized under FIFRA section 18 the use of zinc phosphide on alfalfa before new growth attains a length of 2 inches for control of voles in California.

EPA assessed the potential risks presented by residues of zinc phosphide in or on alfalfa forage and hay. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and decided that the necessary tolerance under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. The data and other relevant material have been evaluated and discussed in the final rule of August 25, 1998 (63 FR 45176) (FRL-6021-6). Since this action is for alfalfa, which is not a human food item (residues not expected in alfalfa seed based on application timing), and residues of zinc phosphide ingested by livestock would be immediately converted to phosphine and metabolized to naturally occurring phosphorous compounds, the human health risk assessment has not changed. Based on that data and information considered, the Agency reaffirms that extension and amendment of the time-limited tolerance will continue to meet the requirements of section 408(l)(6). Therefore, the time-limited tolerance is extended and amended for an additional 1-year and 4-month period. EPA will publish a document in the Federal Register to remove the revoked tolerance from the Code of Federal Regulations (CFR). Although this tolerance will expire and is revoked on December 31, 2002, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on alfalfa forage and hay after that date will not be unlawful, provided the pesticide is applied in a manner that was lawful under FIFRA and the application occurred prior to the revocation of the tolerance. EPA will take action to revoke this tolerance earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA of 1996, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) provides essentially the same process for persons to “object” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d), as was provided in the old FFDCA sections 408 and 409. However, the period for filing objections is now 60 days, rather than 30 days.

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-300975 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before April 24, 2000.

1. Filing the request. Your objection must specify the specific provisions in the regulation that you object to, and the grounds for the objections (40 CFR 178.25). If a hearing is requested, the objections must include a statement of the factual issues(s) on which a hearing is requested, the requestor's contentions on such issues, and a summary of any evidence relied upon by the objector (40 CFR 178.27). Information submitted in connection with an objection or hearing request may be claimed confidential by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. A copy of the information that does not contain CBI must be submitted for inclusion in the public record. Information not marked confidential may be disclosed publicly by EPA without prior notice.

Mail your written request to: Office of the Hearing Clerk (1900), Environmental Protection Agency, 401 M St., SW., Washington, DC 20460. You may also deliver your request to the Office of the Hearing Clerk in Rm. C400, Waterside Mall, 401 M St., SW., Washington, DC 20460. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 260-4865.

2. Tolerance fee payment. If you file an objection or request a hearing, you must also pay the fee prescribed by 40 CFR 180.33(i) or request a waiver of that fee pursuant to 40 CFR 180.33(m). You must mail the fee to: EPA Headquarters Accounting Operations Branch, Office of Pesticide Programs, P.O. Box 360277M, Pittsburgh, PA 15251. Please identify the fee submission by labeling it “Tolerance Petition Fees.”

EPA is authorized to waive any fee requirement “when in the judgement of the Administrator such a waiver or refund is equitable and not contrary to the purpose of this subsection.” For additional information regarding the waiver of these fees, you may contact James Tompkins by phone at (703) 305-5697, by e-mail at tompkins.jim@epa.gov , or by mailing a request for information to Mr. Tompkins at Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460.

If you would like to request a waiver of the tolerance objection fees, you must mail your request for such a waiver to: James Hollins, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460.

3. Copies for the Docket. In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit III.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket control number OPP-300975, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp- docket@epa.gov . Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 file format or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).

This final rule establishes a time-limited tolerance under FFDCA section 408. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any prior consultation as specified by Executive Order 13084, entitled Consultation and Coordination with Indian Tribal Governments (63 FR 27655, May 19, 1998); special considerations as required by Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or require OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 ote). Since tolerances and exemptions that are established on the basis of a FIFRA section 18 petition under FFDCA section 408, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on 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, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the Federal Register . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

The information in this section is organized as follows:

The EPA is finalizing the decision to grant Chaparral Steel's petition to have their leachate and minor amounts of waste water excluded, or delisted, from the definition of a hazardous waste.

After evaluating the petition, EPA proposed, on August 24, 1999, to exclude the Chaparral Steel waste from the lists of hazardous wastes under §§ 261.31 and 261.32 (see 64 FR 46166).

Chaparral Steel petitioned to exclude the landfill leachate and other wastewaters because it does not believe that the petitioned waste meets the criteria for which it was listed.

Chaparral Steel also believes that the waste does not contain any other constituents that would render it hazardous. Review of this petition included consideration of the original listing criteria, as well as the additional listing criteria and the additional factors required by the Hazardous and Solid Waste Amendments (HSWA) of 1984. See, section 222 of HSWA, 42 U.S.C. 6921(f), and 40 CFR 260.22(d)(2)-(4).

For reasons stated in both the proposal and this notice, EPA believes that Chaparral Steel's landfill leachate and other K061 wastewaters should be excluded from hazardous waste control. The EPA therefore is granting a final exclusion to Chaparral Steel, located in Midlothian, Texas, for its leachate from its Landfill No. 3 containing K061 electric arc furnace dust and minor amounts of K061 wastewater from various plant operations including storm water from the baghouse floor areas and the pelletizer sump.

This exclusion applies to the waste described in the petition only if the requirements described in Table 1 are met. The waste described in the petition is leachate from Landfill No. 3 containing K061 electric arc furnace dust and minor amounts of K061 wastewater from various plant operations including storm water from the baghouse floor areas and the pelletizer sump.

The leachate is currently sent to an offsite underground injection well facility for disposal. Although management of the wastes covered by this petition would not be subject to subtitle C jurisdiction upon final promulgation of an exclusion, Chaparral Steel must ensure that the onsite management of the delisted wastes is in accordance with the Texas Natural Resource Conservation Commission (TNRCC) rules and regulations or the waste is delivered to an off-site storage, treatment, or disposal facility, either which is permitted, licensed, or registered by a State to manage municipal or industrial solid waste.

The facility would like to manage the waste in their onsite cooling system of which cooling ponds are a part. The wastewater would be substituted for some of the well water used for cooling purposes which would help conserve that natural resource. In this case, the requested change in waste management is subject to delisting by EPA and subsequent waste management practices in accordance with TNRCC rules and regulations.

This rule is effective February 23, 2000. The Hazardous and Solid Waste Amendments of 1984 amended Section 3010(b) of RCRA to allow rules to become effective in less than six months when the regulated community does not need the six-month period to come into compliance. That is the case here because this rule reduces, rather than increases, the existing requirements for persons generating hazardous wastes. These reasons also provide a basis for making this rule effective immediately, upon publication, under the Administrative Procedure Act, pursuant to 5 U.S.C. 553(d).

Because EPA is issuing today's exclusion under the Federal RCRA delisting program, only States subject to Federal RCRA delisting provisions would be affected. This would exclude two categories of States: States having a dual system that includes Federal RCRA requirements and their own requirements, and States who have received our authorization to make their own delisting decisions.

Here are the details: We allow states to impose their own non-RCRA regulatory requirements that are more stringent than EPA's, under section 3009 of RCRA. These more stringent requirements may include a provision that prohibits a Federally issued exclusion from taking effect in the State. Because a dual system (that is, both Federal (RCRA) and State (non-RCRA) programs) may regulate a petitioner's waste, we urge petitioners to contact the State regulatory authority to establish the status of their wastes under the State law.

The EPA has also authorized some States (for example, Louisiana, Georgia, Illinois) to administer a delisting program in place of the Federal program, that is, to make State delisting decisions. Therefore, this exclusion does not apply in those authorized States. If Chaparral Steel transports the petitioned waste to or manages the waste in any State with delisting authorization, Chaparral Steel must obtain delisting authorization from that State before they can manage the waste as nonhazardous in the State.

A delisting petition is a request from a generator to EPA or another agency with jurisdiction to exclude from the list of hazardous wastes, wastes the generator does not consider hazardous under RCRA.

Under 40 CFR 260.20 and 260.22, facilities may petition the EPA to remove their wastes from hazardous waste control by excluding them from the lists of hazardous wastes contained in §§ 261.31 and 261.32. Specifically, § 260.20 allows any person to petition the Administrator to modify or revoke any provision of parts 260, through 266, 268, and 273 of Title 40 of the Code of Federal Regulations. Section 260.22 provides generators the opportunity to petition the Administrator to exclude a waste on a “generator-specific” basis from the hazardous waste lists.

Petitioners must provide sufficient information to EPA to allow the EPA to determine that the waste to be excluded does not meet any of the criteria under which the waste was listed as a hazardous waste. In addition, the Administrator must determine, where he/she has a reasonable basis to believe that factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste.

Chaparral Steel Midlothian, L.P., petitioned the EPA to exclude from hazardous waste control leachate from its Landfill No. 3 containing K061 electric arc furnace dust and minor amounts of K061 wastewater from various plant operations including storm water from the baghouse floor areas and the pelletizer sump. The listed constituents of concern for K061 are chromium, lead, and cadmium.

Specifically, in its petition, Chaparral Steel requested that EPA grant an exclusion for leachate from its Landfill No. 3 containing K061 electric arc furnace dust and minor amounts of K061 wastewater from various plant operations including storm water from the baghouse floor areas and the pelletizer sump in the amount of 2,500 cubic yards (500,000 gallons) generated per calender year.

To support its petition, Chaparral submitted:

(1) Historical analytical data for the Electric Arc Furnace Dust (K061), and leachate analytical data from their Landfill No. 3 containing the Electric Arc Furnace Dust, and analytical data for the liquid from the K061 waste water storage tank;

(2) Analytical results of the total constituent list for 40 CFR part 264, appendix IX volatiles, semivolatiles, metals (including hexavalent chromium), pesticides, herbicides, polychlorinated biphenyls, furans, and dioxins;

(3) Analytical results of the constituent list derived from appendix IX for identified constituents;

(4) Analytical results for reactive sulfide;

(5) Analytical results for reactive cyanide;

(6) Test results for corrosivity by pH;

(7) Analytical results of samples from bench tests of treated leachate/K061 wastewater; and

(8) Test results for oil and grease.

i. One commenter supported the delisting but was concerned that the rule implies that storm water from melt shop baghouse areas at similar facilities would be required to be considered K061 waste water. The EPA does not intend to imply that this would be the case. Chaparral Steel removes its storm water from the baghouse area and places it in a tank containing K061 leachate and manages the waste as K061. Other generators must characterize their own storm water based on relevent circumstances involved with the generation, management, and disposal of the water.

ii. Two commenters from the same address submitted concerns that their private ground water well and the creek on their property would become contaminated because of the approval of the delisting. A public hearing was requested by these two requestors but not granted.

No, as explained in the proposed exclusion (delisting), EPA concluded that the constituents in the raw leachate, with the exception of lead, if released directly to the groundwater would not reach levels of concern at a down gradient well. The EPA added as a condition or requirement of delisting the waste that the maximum concentration level of lead in the leachate could not exceed 0.69 mg/l. See 64 FR 46176. The 0.69 mg/l concentration value is the Land Disposal Restriction (LDR) value for lead. This concentration is below the health-based value of 1.02 mg/l which is a value calculated for a theoretical down gradient well. The more conservative value was selected as a delisting limit.

Other assumptions made by EPA in the evaluation process were also very conservative. The value for largest amount of leachate generated on a per year basis was used in evaluation. Typically, the amount of leachate generated on a yearly basis is much less than the maximum and the amount generated is decreasing over time. Also, EPA evaluated the waste at the highest concentrations found in analyzing the waste or worst case concentrations. Actually, concentrations of constituents in the waste are less if the average value is used for evaluation purposes. If the leachate is added to the cooling system as proposed by the facility, the concentrations of the constituents in the leachate would be reduced by the well water in the approximately eight million gallon cooling system. According to facility information, nearly 240 million gallons of well water is added to the system annually. The EPA conservatively evaluated a release of raw leachate to the ground water and not the leachate diluted by the cooling system water. The EPA also conservatively assumed a significant release of raw leachate would occur. However, the proposed management scenario for the raw leachate is in an above ground tank with secondary containment. Therefore, it is very unlikely a significant release to the environment would occur.

Because of the conservative assumptions made above (or reasonable worst case scenario), EPA concludes that granting the delisting adds no significant threat to contamination of ground water wells in general even if not managed as proposed in the onsite cooling pond system. As previously stated, although management of the wastes covered by this petition would not be subject to subtitle C jurisdiction upon final promulgation of an exclusion, Chaparral Steel must ensure that the onsite management of the delisted wastes is in accordance with the TNRCC rules and regulations or the waste is delivered to an off-site storage, treatment, or disposal facility, either which is permitted, licensed, or registered by a State to manage municipal or industrial solid waste.

The EPA concludes that granting the delisting adds no significant threat to the contamination of the ground water of the commenter's well specifically. The commenter's well is about one mile away from the cooling water ponds and 500 foot in depth. The soils and geologic formations in the area have a low hydraulic conductivity. The combination of the distance to the well, the depth to the well, and the low hydraulic conductivity make it very unlikely that the commenter's well can be contaminated from the delisted waste.

No, the impact of the petitioned wastes via the surface water route is not a threat. If the leachate is added to the cooling system and associated holding ponds as proposed by the facility, an overflow is an unlikely event and would not ever occur under reasonable circumstances. A release to surface water would most potentially occur only if the plant was shut down and there was a large rainfall event at the same time. In the unlikely event of a release, the facility is required to meet applicable storm water permit concentration levels to protect human health and the environment.

Even though release to surface water is unlikely, EPA evaluated a 100-year, 24 hour rainfall event with the cooling ponds at no freeboard capacity which are also unlikely events. Under normal conditions the ponds would have enough additional capacity (freeboard) to catch all precipitation without an overflow occurring. If such a worst case scenario were to occur, calculations indicate that the concentrations of the constituents of concern would be below drinking water criteria and surface water criteria before reaching the stream at the facility's outfall. See regulatory docket for “Docket Report on Evaluation of Contaminant Releases to Surface Water Resulting Form Chaparral Steel Midlotian, L.P.'s, Petitioned Waste” document. Because of these reasons, EPA concludes that approving the delisting will not significantly impact the stream at the facility's outfall nor at the commenter's location which is approximately one mile downstream. The delisting is protective of human health and the environment.

The EPA is correcting the maximum organic total constituent concentration values for 2-butanone and carbon disulfide found in Table 1. of the proposed exclusion (64 FR 46169, August 24, 1999). The value for 2-butanone total constituent analysis for raw leachate (mg/l) should be 0.005 and not 0.003. The value for carbon disulfide total constituent analysis for treated leachate (mg/l) should be <0.005 and not 0.005.

The EPA is also making a change in Paragraph (5) of the Table 2 language to be consistent with Paragraph (6). The sentence which states “Failure to submit the required data within the specified time period or maintain the required records on site for the specified time will be considered by EPA, at its discretion, sufficient basis to revoke the exclusion to the extent directed by EPA” has been altered to read “Failure to submit the required data within the specified time period or maintain the required records on site for the specified time will be considered by EPA, at its discretion, sufficient basis to reopen the exclusion as described in Paragraph (6).”

Under Executive Order 12866, EPA must conduct an “assessment of the potential costs and benefits” for all “significant” regulatory actions. The final to grant an exclusion is not significant, since its effect, if promulgated, would be to reduce the overall costs and economic impact of EPA's hazardous waste management regulations. This reduction would be achieved by excluding waste generated at a specific facility from EPA's lists of hazardous wastes, thereby enabling this facility to manage its waste as nonhazardous. There is no additional impact due to today's final rule. Therefore, this proposal would not be a significant regulation and no cost/benefit assessment is required. The Office of Management and Budget (OMB) has also exempted this rule from the requirement for OMB review under Section (6) of Executive Order 12866.

Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601-612, whenever an agency is required to publish a general notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis which describes the impact of the rule on small entities ( i.e., small businesses, small organizations, and small governmental jurisdictions). No regulatory flexibility analysis is required however if the Administrator or delegated representative certifies that the rule will not have any impact on a small entities.

This rule if promulgated, will not have an adverse economic impact on small entities since its effect would be to reduce the overall costs of EPA's hazardous waste regulations. Accordingly, I hereby certify that this regulation, if promulgated, will not have a significant economic impact on a substantial number of small entities. This regulation therefore, does not require a regulatory flexibility analysis.

Information collection and record-keeping requirements associated with this final rule have been approved by the OMB under the provisions of the Paperwork Reduction Act of 1980 (Public Law 96-511, 44 U.S.C. 3501 et seq. ) and have been assigned OMB Control Number 2050-0053.

Under section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, which was signed into law on March 22, 1995, EPA must prepare a written statement for rules with Federal mandates that may result in estimated costs to State, local, and tribal governments in the aggregate, or to the private sector of $100 million or more in any one year. When such a statement is required for EPA rules, under section 205 of the UMRA, EPA must identify and consider alternatives, including the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The EPA must select that alternative, unless the Administrator explains in the final rule why it was not selected or it is inconsistent with law. Before EPA establishes regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must develop under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, giving them meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising them on compliance with the regulatory requirements. The UMRA generally defines a Federal mandate for regulatory purposes as one that imposes an enforceable duty upon State, local, or tribal governments or the private sector. The EPA finds that today's delisting decision is deregulatory in nature and does not impose any enforceable duty upon State, local, or tribal governments or the private sector. In addition, the delisting does not establish any regulatory requirements for small governments and so does not require a small government agency plan under UMRA section 203.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of Congress and to the Comptroller General of the United States. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, the Comptroller General of the United States prior to publication of the final rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will become effective on the date of publication in the Federal Register .

Under Executive Order 12875, EPA may not issue a regulation that is not required by statute and that creates a mandate upon a state, local, or tribal government, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by those governments. If the mandate is unfunded, EPA must provide to the OMB a description of the extent of EPA's prior consultation with representatives of affected state, local, and tribal governments, the nature of their concerns, copies of written communications from the governments, and a statement supporting the need to issue the regulation. In addition, Executive Order 12875 requires EPA to develop an effective process permitting elected officials and other representatives of state, local, and tribal governments “to provide meaningful and timely input in the development of regulatory proposals containing significant unfunded mandates.” Today's rule does not create a mandate on state, local or tribal governments. The rule does not impose any enforceable duties on these entities. Accordingly, the requirements of section 1(a) of Executive Order 12875 do not apply to this rule.

The Executive Order 13045 is entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This order applies to any rule that EPA determines: (1) Is economically significant as defined under Executive Order 12866, and (2) the environmental health or safety risk addressed by the rule has a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This rule is not subject to Executive Order 13045 because this is not an economically significant regulatory action as defined by Executive Order 12866.

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments. If the mandate is unfunded, EPA must provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected and other representatives of Indian tribal governments “to meaningful and timely input” in the development of regulatory policies on matters that significantly or uniquely affect their communities of Indian tribal governments. Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

Under Section 12(d) of the National Technology Transfer and Advancement Act, the Agency is directed to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , materials specifications, test methods, sampling procedures, business practices, etc.) developed or adopted by voluntary consensus standard bodies. Where available and potentially applicable voluntary consensus standards are not used by EPA, the Act requires that Agency to provide Congress, through the OMB, an explanation of the reasons for not using such standards.

This rule does not establish any new technical standards and thus, the Agency has no need to consider the use of voluntary consensus standards in developing this final rule.

This is a synopsis of the Commission's Report and Order, MM Docket Nos. 99-164, 99-165 and 99-166, adopted February 2, 2000, and released February 11, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center (Room 239), 445 12th Street, SW, Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW, Washington, DC 20036.

Even though riparian brush rabbit ( Sylvilagus bachmani riparius ) specimen records and sightings were known from along the San Joaquin River near the boundary of San Joaquin and Stanislaus Counties, Orr (1935, in Orr 1940) believed, based on the presence of suitable habitat, that the species' historical range extended along the Sacramento and San Joaquin river systems, from Stanislaus County to the Delta region. Historical records for the riparian woodrat ( Neotoma fuscipes riparia ) are similarly distributed along the San Joaquin, Stanislaus, and Tuolumne Rivers, and Corral Hollow, in San Joaquin, Stanislaus, and Merced Counties (Hooper 1938; Williams 1986). Thus, prior to the statewide reduction of riparian communities by nearly 90 percent (Katibah 1984), the riparian brush rabbit and riparian woodrat probably ranged throughout the extensive riparian forests along major streams flowing onto the floor of the northern San Joaquin Valley.

Today only one extant population of each of these subspecies is known. The remnant population of each subspecies is in a 104.5 hectare (ha) (258 acre (ac)) fragment of riparian forest on the Stanislaus River at the Park (Williams 1993) situated on the border of San Joaquin and Stanislaus Counties, northwest of Modesto, in the northern San Joaquin Valley, California. Upstream and downstream of the Park, some original riparian habitat remains on private property. However, the fragments are small, isolated, and unlikely to be inhabited by either riparian brush rabbits or riparian woodrats. In January of 1997, the Park flooded, submerging most of the habitat of these two subspecies. Evidence of only three riparian brush rabbits and six riparian woodrats was seen immediately following this flooding episode (Daniel F. Williams, California State University, Stanislaus, in litt. 1997). In 1998, only one riparian brush rabbit and nine riparian woodrats were live-trapped (D. Williams, in litt. 1998). Other potential threats include wildfire, disease, predation, competition, rodenticide use, clearing of riparian vegetation, and the loss of genetic variability. Naturally occurring events, such as drought and flooding, also increase the risk to the single, small population of each subspecies. This rule extends the protective provisions under the Act (16 U.S.C. 1531 et seq. ) to these animals.

The riparian brush rabbit was described as a distinct subspecies by Orr (1935, in Orr 1940) and is one of 13 subspecies of Sylvilagus bachmani (Hall 1981), 8 of which occur in California. The specimen from which the subspecies designation was described was collected from the west side of the San Joaquin River west of Modesto in Stanislaus County, California, less than 10 kilometers (km) (6 miles (mi)) from the Park. S. bachmani belongs to the order Lagomorpha and family Leporidae. The riparian brush rabbit is a medium to small cottontail (total length 300 to 375 millimeters (mm) (11.8 to 14.8 inches (in)), mass 500 to 800 grams (g) (1.1 to 1.8 pounds (lb)) and is unique in that the sides of the rostrum (nasal/upper jaw region of the skull), when viewed from above, are noticeably convex instead of straight or concave as in other races of S. bachmani (Orr 1940). The color varies from dark brown to gray above to white underneath. The subspecies is visually similar to the desert cottontail ( S. audubonii ), which also occurs in riparian habitats within the historical distribution of the riparian brush rabbit. The riparian brush rabbit can be distinguished from the desert cottontail by a smaller, more inconspicuous tail and uniformly colored ears (no black tip). However, in-hand identification is needed to separate juveniles of these subspecies definitively (Williams 1993).

Breeding of the riparian brush rabbits is restricted to the period of female receptivity, approximately January to May, putting this subspecies at a competitive disadvantage to the desert cottontails outside the Park that breed all year (Mossman 1955; Service 1997). After a gestation period of 26 to 30 days, the young are born in nest cavities lined mainly with fur and covered with a grass plug (Davis 1936; Orr 1940). The young are born naked, blind, and helpless and open their eyes in 10 days (Orr 1940). The young rabbits remain in the nest about 2 weeks before venturing out, and the female will continue to suckle her young 2 to 3 weeks after their birth. Orr (1940) reported a mean litter size of 3 to 4, with extremes of 2 to 5, while Mossman (1955) reported an average of 4, with a range of 2 to 6. Riparian brush rabbits take 4 to 5 months to reach adult size but do not reach sexual maturity until the winter following birth. Females give birth to about 5 litters per season, averaging an estimated 9 to 16 young per breeding season (Basey 1990). The percentage of females active during the breeding season is unknown, but in one study, 9 of 25 female adults examined showed no signs of reproductive activity (Basey 1990). Brush rabbits have relatively small home ranges that usually conform to the size and shape of available brushy habitat (Basey 1990). In general, the home ranges of males are larger than those of females but do not overlap the primary activity centers within female territories (Basey 1990). Population estimates from the Park have varied from 88 to 452 individuals (Williams 1988), 320 to 540 individuals (Basey 1990), and 170 to 608 individuals over 81 ha (200.1 ac) (Williams 1993), but recent flooding in 1997 and 1998 reduced numbers severely. In 1997, no riparian brush rabbits were live-trapped, one was sighted, and pellets from two others were seen; in 1998, one rabbit was live trapped.

Habitat for the riparian brush rabbit consists of riparian forests with a dense understory shrub layer. Forests with a closed canopy, however, generally lack sufficient understory of shrubs to meet riparian brush rabbits' needs. Brush rabbits frequent small clearings where they bask in the sun and feed on a variety of herbaceous vegetation, including grasses, sedges, clover, forbs, shoots, and leaves. Where mats of low-growing Rosa californica (California wild rose) and Rubus vitifolius (Pacific blackberry) occur, the brush rabbits live in tunnels that run through the vines and shrubs. Other common plants in this riparian forest community are Vitis californica (wild grape), Baccharis douglasii (Douglas' coyote bush), and grasses (Basey 1990; Williams 1988). Presence of more surface litter and lack of willows in the understory signify areas of higher ground that are not flooded regularly or heavily (Williams and Basey 1986).

Brush rabbits are closely tied to cover and usually remain for several seconds to minutes just inside dense, brushy cover before venturing into the open. They seldom move more than a meter from cover. When pursued, they leap back into the cover of shrubs instead of heading into open ground (Chapman 1974, in Service 1997). They will not cross large, open areas and, therefore, are unable to disperse beyond the dense brush of the riparian forest at the Park (Williams 1988). The riparian brush rabbit can climb into bushes and trees, though its climbing is awkward and limited. This trait probably has significant survival value, given that riparian forests are subject to inundation by periodic flooding. During periods of heavy flooding, when virtually no suitable habitat remains available as refugia, the population has dropped dramatically.

During the flooding of 1976, Park personnel used boats to rescue rabbits from bushes. During the flood of 1986, which was short lived, it was estimated that all but 10-25 rabbits at the Park were lost (D. Williams, in litt. 1997). The population rebounded to 213-312 individuals by 1993 (Williams 1993), and the Park was considered at carrying capacity (the maximum population that a particular environment can sustain) under prevailing environmental conditions (following 7 years of drought). Surveys were conducted in May 1997, after extensive winter flooding at the Park, but no riparian brush rabbits were live-trapped. One brush rabbit was live-trapped in February 1998, following a heavy and continuous rainfall.

Such extraordinarily low population levels subject this subspecies to increased genetic risks and naturally occurring random events (see discussion in Factor E of the Summary of Factors Affecting the Species section of this final rule). Surveys conducted in all potential habitat along the Merced, San Joaquin, Stanislaus, and Tuolumne rivers during 1985 and 1986 failed to locate any additional populations of riparian brush rabbits (Williams 1988).

Because the subspecies was not described until after it is believed to have been extirpated from most of its historical range, definitive information on its former distribution is lacking. It apparently has been extirpated from the Sacramento-San Joaquin River Delta, as well as most of the lower San Joaquin River and its tributaries, and the Stanislaus, Tuolumne, and Merced rivers (Williams 1986). The range of the subspecies probably extended farther upstream than the Merced River, assuming that suitable habitat historically occurred along the length of the San Joaquin River system (Williams and Basey 1986).

The riparian woodrat ( Neotoma fuscipes riparia ) was first described by Hooper (1938), and is one of 11 subspecies of N. fuscipes in the family Muridae (order Rodentia). The specimens from which the subspecies designation was described were collected about 3 km (2 mi) northeast of Vernalis, west of Modesto in Stanislaus County, California, approximately 10 km (6 mi) from the Park. Although some taxonomic studies of the genus Neotoma have been completed in recent years, no further systematic revisions of N. fuscipes have been published since Hooper's 1938 report (Hall 1981; Williams 1986; Williams 1993). The genetic structure of selected populations of N. fuscipes, including N. fuscipes riparia, is currently being examined (James Patton, University of California, Berkeley, in litt. 1998). The riparian woodrat is a medium-sized rodent, averaging 443 mm (17.4 in) in total length, including its 217 mm (8.5 in.) furred tail (Hooper 1938), and ranges from 200 to 400 g (7.05 to 14.11 ounces (oz)) in weight, with marked seasonal variation (Williams et al. 1992; Service 1997). Neotoma fuscipes riparia differs from other, adjacent subspecies of woodrats by being larger, lighter, and more grayish in color, with white hind feet instead of dusky on their upper surfaces, and a tail more distinctly bicolored (lighter below and darker on top). In addition, skull measurements and skull characteristics differ (Hooper 1938).

The following information is taken from a number of studies on Neotoma fuscipes, including N. f. riparia and related subspecies. The dusky-footed woodrat lives in loosely cooperative societies and has a matrilineal (mother-offspring) social structure. Males are highly territorial and aggressive, especially during the breeding season when they will mate with more than one female (Kelly 1990, in Service 1997). Females have 1 to 5 litters per year with 3 to 4 young in each litter. Reproduction occurs in all months, with the fewest pregnancies in December and the most in February. Numbers of juveniles appearing outside the nest is greatest in July and least in January and February (Williams et al. 1992). The young are born in stick nest houses, or lodges, on the ground, which measure 0.6 to 0.9 meters (m) (2 to 3 feet (ft)) high and 1.2 to 1.8 m (4 to 6 ft) in diameter. Most houses are positioned over or against logs (Cook 1992). Unoccupied houses can persist 20-30 years (Linsdale and Tevis 1951, in Service 1998) if not destroyed by flooding (D. Williams, pers. comm. 1998). Unlike other subspecies, the riparian woodrat occasionally builds nests in cavities in trees and in artificial wood duck nest boxes (Williams 1986). Nest houses typically are occupied by an individual adult. Unlike males, females remain in or near natal areas (birthplace) throughout their life (Williams et al. 1992). At the Park, Williams (1993) reported a mean density of 8.32 houses per hectare (ha) (20.55 houses per acre (ac)), or 757 houses on 91 ha (225 ac) of suitable habitat; occupancy was not verified. In a study of another subspecies of N. fuscipes, Linsdale and Tevis (1951, in Service 1998) found that 70 percent of the population survived less than 1 year, 27 percent survived 2 years, and 3 percent survived 3 years or more. Williams et al. (1992) also cited a number of studies that indicated woodrats are highly responsive to habitat alteration, with populations fluctuating widely in response to a variety of natural or manmade factors, such as fire, flood, drought, habitat modification, and browsing and trampling by ungulates. Cook (1992) estimated the Park population at 637 woodrats over 102 ha (252 ac) of habitat. Williams (1993) estimated a peak population at Caswell of 437 animals, based on mean density of 4.8 woodrats per ha on 91 ha (225 ac) of suitable habitat. A woodrat population was reported from the early 1970s near the type locality at Vernalis, but the current status of the population is unknown (Williams 1986). Between April 1, 1997, and March 20, 1998, 15 riparian woodrats were live-trapped at the Park (D. Williams in litt. 1998).

Riparian woodrats are common where there are deciduous valley oaks but few live oaks. Riparian woodrats are most numerous where shrub cover is dense and least abundant in open areas. In riparian areas, highest densities of woodrats and their houses are often encountered in willow thickets with an oak overstory (Linsdale and Tevis 1951, in Service 1998). Mostly active at night, the woodrat's diet is diverse and principally herbivorous, with leaves, fruits, terminal shoots of twigs, flowers, nuts, and fungi comprising the bulk of ingested material (Williams et al. 1992).

The range of the riparian woodrat is far more restricted today than it was in 1938 (Williams 1986). The only verified population is restricted to about 102 ha (252 ac) of riparian forest at the Park on the Stanislaus River. Loss, fragmentation, and degradation of habitat are the principal reasons for the decline of the riparian woodrat (Service 1997). The most immediate threats include flooding of Park lands and wildfires. Because the riparian woodrat is able to climb trees more easily than the brush rabbit, the woodrat may not be directly affected by flooding to the degree the riparian brush rabbit is. Woodrat houses, which are essential to survival, can, however, be severely impacted by flooding, thus affecting the viability of the population. Wildfires are of concern because of the potential for severe degradation of habitat and the loss of individuals unable to escape the fire. In addition to the threat of random natural events such as flooding and fire, the riparian woodrat is also prone to the effects of ongoing threats such as disease, predation, and potential competition with the exotic black rat ( Rattus rattus ) (D. Williams, in litt. 1998; D. Williams, pers. comm. 1998). No specific conservation measures for the riparian woodrat are in place, but the species does receive some protection through the management plan for the riparian brush rabbit at the Park. The California Department of Parks and Recreation has supported some general small-mammal studies and woodrat population studies at the Park (Cook 1992; Williams 1993).

Today, riparian communities of the lower San Joaquin River and its tributaries outside the Park have virtually been eliminated. The remaining habitat patches are small, narrow fragments confined within levees. The placement of these levees has eliminated the natural floodplain of the Stanislaus River, increasing the severity of the flooding that occurs within the confines of the levees. Therefore, the Park, which is on the river side of the levees, is prone to flood completely during major storms or heavy flow releases from New Melones dam (D. Williams, pers. comm. 1998). Because remaining riparian forests are small, isolated, and vulnerable to major flood events (Williams and Basey 1986), whether they can support viable populations of these subspecies over the long-term is questionable. Historical habitat and refugia from flooding in surrounding lands are now unsuitable for these subspecies, as these lands consist primarily of cultivated fields, orchards, and vineyards (Williams and Basey 1986). Wildfire, flooding, brush clearing, predation, competition, disease, and use of rodenticides imperil the continued existence of these two subspecies in their last known population center.

Federal action on these two subspecies began on September 18, 1985, when we published the Vertebrate Wildlife Notice of Review (50 FR 37958), which included the riparian brush rabbit and riparian woodrat as category 2 candidate species. Category 2 candidates, a designation discontinued in a Notice of Review published by us on February 28, 1996 (61 FR 7596), were taxa for which we had information in our possession indicating that proposing to list as endangered or threatened was possibly appropriate, but for which conclusive data on biological vulnerability and threats were not currently available. In the January 6, 1989, Animal Notice of Review (54 FR 554), we elevated the riparian brush rabbit to a category 1 candidate species as a result of more intensive field work by Williams and Basey (1986) that identified only a single remaining population of this subspecies. Category 1 taxa were those for which we had substantial information on biological vulnerability and threats to support preparation of listing proposals. We retained the riparian brush rabbit as a category 1 candidate and elevated the status of the riparian woodrat to category 1 in the November 21, 1991, Animal Notice of Review (56 FR 58804). This change was based on a re-evaluation of the information contained in the study conducted by Williams and Basey (1986). The November 15, 1994, Animal Notice of Review (59 FR 58987) included both subspecies in category 1. Upon publication of the February 28, 1996 combined Animal and Plant Notice of Review (61 FR 7596), we ceased using category designations and included both subspecies as candidates. Candidate species are those for which we have on file sufficient information on biological vulnerability and threats to support proposals to list the species as threatened or endangered. Candidate status for these animals was continued in the September 19, 1997, Notice of Review (62 FR 49398).

Based on the decline in numbers of both these subspecies as identified during the live-trapping surveys of 1997 (D. Williams, in litt. 1997) and the threats to their continued existence, the riparian brush rabbit and riparian woodrat were proposed for listing as endangered on November 21, 1997 (62 FR 62276).

The processing of this final rule conforms with our Listing Priority Guidance published in the Federal Register on October 22, 1999 (64 FR 57114). The guidance clarifies the order in which we will process rulemakings. Highest priority is processing emergency listing rules for any species determined to face a significant and imminent risk to its well-being (Priority 1). Second priority (Priority 2) is processing final determinations on proposed additions to the lists of endangered and threatened wildlife and plants. Third priority is processing new proposals to add species to the lists. The processing of administrative petition findings (petitions filed under section 4 of the Act) is the fourth priority. The processing of critical habitat determinations (prudency and determinability decisions) and proposed or final designations of critical habitat will no longer be subject to prioritization under the Listing Priority Guidance. This final rule is a Priority 2 action and is being completed in accordance with the current Listing Priority Guidance. We have updated this rule to reflect any changes in information concerning distribution, status, and threats since the publication of the proposed rule. This additional information did not alter our decision to list the two subspecies.

In the proposed rule published November 21, 1997 (62 FR 62276), we requested that all interested parties submit factual reports or information that might contribute to the development of a final rule for the riparian brush rabbit and the riparian woodrat. The public comment period closed on January 21, 1998. We contacted appropriate State agencies, county and city governments, Federal agencies, scientific organizations, and other interested parties and requested comments. We published a newspaper notice in The Modesto Bee on January 20, 1998, which invited general public comment. Given the flood events of 1997 and 1998, on April 13, 1998, the public comment period was reopened (63 FR 17981) to consider any new survey information or other new information prior to making the final status determinations. This comment period ended May 28, 1998.

We received 11 comments concerning the proposed rule during the comment period, from a total of 10 commenters. Some commenters submitted more than one comment to us. Six commenters supported the listing; four commenters were neutral. No commenters opposed the proposed listing. Several commenters provided additional information that, along with other clarifications, has been incorporated into the “'Background”' or “'Summary of Factors Affecting the Species”' sections of this final rule. Comments have been organized into specific issues. These issues and our responses are summarized as follows:

Issue 1: Two commenters expressed concern that the area around the Park should be protected from further urban development.

Our Response: Habitat protection afforded by the Act (under section 7) to species listed as threatened or endangered requires Federal agencies to consult with us on any action that is funded, authorized, or carried out by a Federal agency. The concerns for the subspecies will be addressed and measures may be implemented to ensure that the proposed action will not jeopardize the continued existence of either the riparian brush rabbit or the riparian woodrat. For detailed discussions of the section 7 consultation process, see the Available Conservation Measures section of this final rule. In addition, once the subspecies are listed, a recovery plan (or plans) is drafted (for a discussion of the recovery planning process, see the Available Conservation Measures section of this final rule).

Issue 2: The Department of Parks and Recreation, which owns and manages the Park, was concerned about restrictions the listing of these two subspecies may have on the recreational and maintenance activities at the Park.

Our Response: We recognize these concerns and anticipate continuing to work closely with the Department of Parks and Recreation and staff at the Park in furthering protective measures, many of which have already been voluntarily implemented. We are confident that the protection and recovery of these two subspecies will be compatible with recreational and maintenance activities at the Park.

In accordance with our Interagency Cooperative Policy for Peer Review published on July 1, 1994 (59 FR 34270), we solicited the expert opinions of four independent and appropriate specialists regarding review of pertinent scientific or commercial data and issues relating to the taxonomy, population models, and supportive biological and ecological information for the riparian brush rabbit and the riparian woodrat.

We received comments from two of the four requested peer reviewers. Both reviewers stated that the proposed rule contained an accurate summary of the natural history, current status, and current threats to survival of the two subspecies and that listing was warranted. One reviewer was concerned that the listing may be too late to prevent extinction by natural factors alone. The other reviewer suggested clarifications or changes within the text. The reviewer suggests that (1) low population numbers of the brush rabbit clearly make it extremely vulnerable to detrimental genetic processes and random events, while the proposed rule suggested such populations may be only somewhat vulnerable; (2) decreased survivorship of young is the best known of the effects of inbreeding (deleterious genes). Inbreeding actually reduces all of the following: fecundity, juvenile survivorship, and adult lifespan; and (3) the reviewer provided a reference to a new study by Saccheri et al. (1998) that states “* * * inbreeding can contribute significantly to the extinction of wild populations' (Katherine Ralls, Smithsonian Institution, in litt. 1998). Information and suggestions provided by the reviewers have been taken into consideration during the development of this final rule and incorporated where appropriate.

Section 4 of the Act and regulations (50 CFR part 424) that implement the listing provisions of the Act set forth the procedures for adding species to the Federal lists of endangered and threatened species. We determine if a species is endangered or threatened due to one or more of the five factors described in section 4(a)(1) of the Act. These factors and how we applied them to the riparian brush rabbit and to the riparian woodrat are as follows:

Sylvilagus bachmani riparius and Neotoma fuscipes riparia inhabit riparian forest communities, and both apparently have been extirpated from their entire historical range except for a single known population of each along the Stanislaus River. Katibah (1984) estimated that only 41,300 ha (102,052 ac) remain of an estimated 373,000 ha (921,170 ac) of presettlement riparian forest in California's Central Valley, a reduction of 89 percent. He attributed the loss and modification of riparian forests along valley floor river systems to urban, commercial, and agricultural development; wood cutting; reclamation and flood control activities; groundwater pumping; river channelization; dam construction; and water diversions (Katibah 1984).

Several land use practices and related human activities contributed to the decline of the riparian brush rabbit and riparian woodrat throughout their historical ranges. During the past 10 to 20 years, cultivation has expanded along the floodplain of the main tributaries of the lower San Joaquin River system (Basey 1990). Increased habitat conversion to agricultural uses has resulted from the recent construction of the following dams on tributaries that individually and collectively have altered the timing, frequency, duration, and intensity of flooding—Exchequer Dam on the Merced River, New Melones Dam on the Stanislaus River, and New Don Pedro Dam on the Tuolumne River. Before these dams and flood control projects (levees) were constructed, much of the natural floodplain was used as pasture land for livestock grazing (Basey 1990). Uneven topography in these areas, before the dams were constructed, provided escape cover because some land remained above typical flood levels and contained patches of shrubs and trees for cover. Such sites likely provided refuge from flooding for these subspecies. Williams and Basey (1986) state that “* * * virtually all areas outside of flood control levees now have been cleared, leveled, and planted to orchards, vineyards, or annual row crops.” Conversion from pasture to cultivated fields also eliminated hedgerows and other residual patches of cover that provided travel corridors and refuge sites for the two subspecies. The severity of flooding likely increased as the habitat for these two subspecies was incorporated by flood control levees. The effects of catastrophic flooding are discussed further under Factor E of this section.

Although brush clearing adversely affected the habitat of the riparian brush rabbit and the riparian woodrat populations at the Park in the mid-1980s (Williams 1986), these populations are no longer directly threatened by brush clearing, tree cutting, or the conversion of land to agricultural uses. Because the only known populations of these subspecies occur within the boundaries of the Park, such activities outside of Park boundaries do not currently pose a direct threat to either subspecies. Such activities continue, however, to eliminate and fragment patches of remnant habitat within the historical range of these subspecies.

Overutilization is not known to be a threat to either subspecies. However, the very small population at the remaining site makes the riparian brush rabbit vulnerable to extinction from unauthorized recreational hunting and collection for scientific or other purposes. The brush rabbit ( Sylvilagus bachmani ) is designated as a resident small game species in California and is hunted from July 1 through January 30 with a daily bag limit of five animals (Williams and Basey 1986). Hunting regulations set by the California Fish and Game Commission do not distinguish the riparian brush rabbit from other subspecies of S. bachmani. Therefore, riparian brush rabbits that disperse beyond the boundaries of the Park (as they may, especially during times of flooding) face the potential threat of being hunted.

Like most rabbits, the riparian brush rabbit is subject to a variety of common diseases, including tularemia, plague, encephalitis, and brucellosis. These contagious, and generally fatal, diseases could be transmitted easily to riparian brush rabbits from neighboring populations of desert cottontails (Williams 1988). A suspected outbreak of plague in 1966-67 decimated woodrat populations in foothills of the southern Sierra Nevada, the Tehachapi Mountains, and the Coast Range (Murray and Barnes 1969, in Williams et al. 1992). The small population size and restricted distribution of both the riparian brush rabbit and riparian woodrat increase their vulnerability to epidemic diseases. However, the significance of the threat of disease to the riparian brush rabbit and riparian woodrat is not known.

Coyotes ( Canis latrans ), gray foxes ( Vulpes cinereoargenteus ), long-tailed weasels ( Mustela frenata ), raccoons ( Procyon lotor ), feral domestic cats ( Felis catus ) and dogs ( Canis familiaris ), hawks ( Accipitridae ), and owls ( Strigidae ) are known predators of brush rabbits and woodrats (Orr 1940; Williams 1988). At currently depleted population levels, any predation could substantially affect the survival of these two subspecies.

Section 404 of the Clean Water Act (CWA) is a Federal law that potentially affords some attention and protection for these subspecies. However, brush clearing, tree cutting, and the conversion of riparian habitat to agricultural uses, all of which adversely affect both subspecies, are generally unregulated, and this law does not provide protection from these activities. For example, pursuant to 33 CFR 323.4, the U.S. Army Corps of Engineers (Corps) has promulgated regulations that exempt some farming, forestry, and maintenance activities from the regulatory requirements of section 404. Although the Corps administers flowage (flooding) and restoration easements along the lower reaches of the Stanislaus River, the difficulty of enforcing the conditions of the easements and inadequate funding for restoration impedes appropriate habitat restoration activities.

The California Department of Parks and Recreation developed a riparian brush rabbit management plan for the Park (Williams 1988). This management plan provides some measure of protection to the riparian brush rabbit population and incidental protection for the riparian woodrat. Despite the existence of a management plan, both the riparian brush rabbit and riparian woodrat remain vulnerable to threats and hazards originating outside of the Park as well as threats that continue within the Park's boundaries (see Factor E below).

Under the California Environmental Quality Act (CEQA) (Public Resources Code §§ 21000-21177), full disclosure of the potential environmental impacts of proposed projects is required. The public agency with primary authority or jurisdiction over the project is designated as the lead agency and is responsible for conducting a review of the project and consulting with the other agencies concerned with the resources affected by the project. Section 15065 of the guidelines that guide CEQA implementation requires a finding of significance if a project has the potential to “reduce the number or restrict the range of a rare or endangered plant or animal.” Species that are eligible for listing as rare, threatened, or endangered but are not so listed are given the same protection as those species that are officially listed with the State. However, once significant effects are identified, the lead agency has the option to require mitigation for effects through changes in the project or to decide that overriding considerations, such as overriding social or economic considerations, make mitigation infeasible (CEQA § 21002). In the latter case, projects may be approved that cause significant environmental damage, such as destruction of endangered species, their habitat, or their continued existence. Protection of listed species through CEQA is, therefore, dependent upon the discretion of the agency involved.

The California Endangered Species Act (CESA) affords the riparian brush rabbit some conservation benefits. The State of California listed the riparian brush rabbit as an endangered species in May 1994. Although the CESA provides a measure of protection to the subspecies, resulting in the formulation of mitigation measures to reduce or offset impacts for any projects proposed in riparian brush rabbit habitat, this law has not adequately prevented the ongoing loss of riparian forest. Riparian forests outside of the Park are important for recovery implementation to succeed, as neither the riparian brush rabbit nor the riparian woodrat can be recovered on Park lands alone (Service 1997).

Small, isolated populations are especially at risk from random events as there is little or no possibility of recolonization if the random event, whether natural or manmade, affects the entire population. Random events that may be catastrophic to the riparian brush rabbit or the riparian woodrat include the threat of wildfire, severe flooding, and prolonged drought. Although the Park initiated a fire management plan to reduce fuel load and create firebreaks in an effort to protect habitat, the threat of fires originating outside of the Park boundaries and accidentally within the Park boundaries from recreational activities still exists. Wildfire exposes the riparian brush rabbit and the riparian woodrat to habitat destruction and death (Basey 1990). The brushy areas most vulnerable to fire also are important areas of habitat for riparian brush rabbits and riparian woodrats (Basey 1990). Between 1975 and 1987, 10 wildfires were reported within the Park. After 0.2 ha (0.5 ac) were burned in 1981, no evidence of brush rabbits was found in the area (Basey 1990). Fire is known to kill other species of woodrats, such as the closely related dusky-footed woodrat ( Neotoma fuscipes ), and thus presumably poses the same threat to the riparian woodrat. After a fire burned a canyon bottom dominated by oaks and sycamores in south-coastal California, Chew et al. (1959, in Williams et al. 1992) found 16 dead dusky-footed woodrats per acre.

Although flooding of low-lying riparian forests is a naturally occurring event, the changes to the river systems which began around the 1940s have altered natural flooding and its frequency, timing, and severity, due to manmade levees, dams, and water diversions. The Stanislaus River, for example, has manmade levees built to keep high flows channelized and dams upstream for flood control and water storage. The riparian habitat at the Park is confined entirely within levees, offering little protection from flooding during periods of high stream flow that routinely occur during the wet winter season. Major flooding likely drowns riparian brush rabbits and riparian woodrats, eliminates foraging habitat and shelter for prolonged periods, and exposes brush rabbits and woodrats to increased predation by stranding them in trees or on high ground where there is little or no cover (Nolan 1984, in Service 1997). Ironically the levees themselves now function as high ground during flooding events.

Surveys have confirmed that after major flooding events the numbers of riparian brush rabbits and riparian woodrats decrease, sometimes dramatically. Basey (1990) concluded, based on visual sightings and pellet surveys, that the riparian brush rabbit population may have been reduced to fewer than 15 to 20 individuals during flooding in 1983. Only about 3.6 ha (9 ac) in five small areas of the 104.5 ha (258 ac) Park showed regular use by brush rabbits in the summer of 1986 after floods in February and March of that year (Williams 1988). Williams (1986) found that riparian brush rabbits sometimes gain temporary shelter from floods by climbing trees, but he estimated that only 10 or fewer individual rabbits survived the severe winter flooding in 1985-86 (Williams 1988).

The floods of January 1997 left about 85 percent of the Park under 0.6-3.0 m (2-10 ft) or more of water in most areas for at least 2 weeks and, in lower areas, for as long as 7 weeks. Efforts in January to locate and potentially rescue stranded riparian brush rabbits resulted in the observation of only a single rabbit pellet (D. Williams, in litt. 1997). In areas of the Park searched visually in March 1997, no rabbits or pellets were found, although searchers did find two mounds containing fresh grass. Such mounds or “forms” are typically made by rabbits. In April 1997, searchers documented two rabbit fecal pellets but found no other sign of rabbits or woodrat activity. Trapping surveys were initiated in early May, well after floodwaters had receded, in hopes that any surviving rabbits would be located. During 22 nights of trapping, no rabbits were caught, one rabbit was visually sighted, and at another location, fresh rabbit tracks were found (D. Williams, in litt. 1997).

The riparian woodrat also is vulnerable to flooding events, although its ability to nest in trees and wood duck nest boxes (Williams 1993) suggests some ability to avoid the negative effects of flooding. Nonetheless, the large majority of woodrat nests occur on the ground (Williams 1993). After the January 1997 floods inundated the Park for 2 to 7 weeks, trapping and survey efforts in May 1997 resulted in the capture of only eight woodrats (D. Williams, in litt. 1997). Trapping efforts of similar intensity in 1993 resulted in the capture of 57 woodrats (D. Williams, in litt. 1997). Severe flooding could eliminate the Park populations of both the riparian brush rabbit and the riparian woodrat and result in the extinction of these subspecies. Flooding is also likely to increase competition between riparian brush rabbits and desert cottontails, a subspecies that occurs in a wider range of habitats, including riparian zones, within the same geographic area (Basey 1990). Riparian brush rabbits cannot return to their home areas if displaced more than about 340 m (1,115.5 ft) (Chapman 1971, in Basey 1990). Desert cottontails, in contrast, may return home when displaced as much as 4.8 km (3 mi) (Bowers 1954, in Basey 1990). Therefore, if displaced by flooding more than about 340 m (1,115.5 ft) from their home areas, riparian brush rabbits may be stranded in habitats where desert cottontails have a competitive advantage.

Drought may decrease the carrying capacity of riparian forest habitat for the riparian brush rabbit and the riparian woodrat. By 1993, following seven years of drought, riparian forest habitat at the Park was considered to be at carrying capacity for the riparian brush rabbit (Williams 1993). Depressed population densities of woodrats have been reported due to drought (Linsdale and Tevis 1951, in Service 1998). Because riparian forest habitat at the Park is an isolated area of habitat, decreased carrying capacity may affect the populations of riparian brush rabbits and riparian woodrats because more individuals compete for the same resources, such as food and shelter. In some mammals, long periods of drought and increased competition among individuals can affect individual survivorship and reproductive success (Service 1997). Surveys to determine the effects of prolonged drought on the carrying capacity of Park habitat for the riparian woodrat, however, have not been conducted.

Other factors that are a concern are the use of rodenticides in areas outside of the Park (rodenticides are no longer applied in Park habitat) and competition from exotic or invading species, such as the desert cottontail or the black rat, which may compete with the riparian brush rabbit or the riparian woodrat, respectively (Service 1997). Additionally, the extent to which recreational activities such as vehicular and pedestrian traffic and predation by domestic dogs and cats may affect these subspecies has not been studied. With severely low populations of both subspecies, these activities may have a significant effect on their survival.

The population numbers of both subspecies are now sufficiently low that the effects of inbreeding are highly likely to result in the expression of deleterious genes in the population ( i.e., inbreeding depression) (Gilpin 1987; K. Ralls, in litt. 1998). Such deleterious genes can reduce individual fitness in various ways, including decreased survivorship of young, reduced fecundity (reproductive capacity), and reduced adult lifespan (K. Ralls, in litt. 1998). Small populations are also at greater risk from the effects of genetic drift, a decrease in genetic variability due to random changes in gene frequency from one generation to the next. This reduction of variability within a population limits the ability of that population to respond to environmental changes.

Presently, a multispecies habitat conservation plan (HCP) is being developed for San Joaquin County, California. The riparian brush rabbit and riparian woodrat will be considered in this HCP, and some conservation measures that will likely minimize adverse impacts and/or benefit these two subspecies. A draft HCP will be available for public review in the future. Until the HCP is released for public comment, we cannot determine how the HCP will affect these two subspecies.

In developing this final rule, we have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by these subspecies. Based on this evaluation, the preferred action is to list the riparian brush rabbit and the riparian woodrat as endangered. The small population size and single locality of these two subspecies render them extremely vulnerable to a wide array of threats. These subspecies currently face immediate threats from wildfire, flooding events, and drought. In addition, they face threats from habitat destruction, competition, predation, and the use of rodenticides. The riparian forest is reduced along the San Joaquin River system to the point that the few remaining habitat remnants outside of the Park are small and isolated and cannot support viable populations of these subspecies that can persist over time. Thus, even in the event that the few remaining unsurveyed fragments of habitat do support these subspecies, the recommended listing status of the riparian brush rabbit and riparian woodrat would not change and their listing as endangered would be warranted. Projected increases in human population within the San Joaquin Valley and pressures associated with urban development, as well as the inadequacy of existing regulatory mechanisms, suggest action is needed to successfully recover the riparian brush rabbit and the riparian woodrat. Threatened status is not appropriate for either subspecies, considering the extent of loss and degradation of their habitat and the vulnerability of the remaining population.

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

In the proposed rule, we indicated that designation of critical habitat was not prudent for the riparian brush rabbit and riparian woodrat because we believed it would not provide any additional benefit beyond that provided through listing as endangered since the species are only found within the State park.

In the last few years, a series of court decisions have overturned Service determinations regarding a variety of species that designation of critical habitat would not be prudent ( e.g., Natural Resources Defense Council v. U.S. Department of the Interior 113 F. 3d 1121 (9th Cir. 1997); Conservation Council for Hawaii v. Babbitt, 2 F. Supp. 2d 1280 (D. Hawaii 1998)). Based on the standards applied in those judicial opinions, we have reexamined the question of whether critical habitat for the riparian brush rabbit and riparian woodrat would be prudent.

In the absence of a finding that critical habitat would increase threats to a species, if there are any benefits to critical habitat designation, then a prudent finding is warranted. In the case of these species, there may be some benefits to designation of critical habitat. The primary regulatory effect of critical habitat is the section 7 requirement that Federal agencies refrain from taking any action that destroys or adversely modifies critical habitat. While a critical habitat designation for habitat currently occupied by these species would not be likely to change the section 7 consultation outcome because an action that destroys or adversely modifies such critical habitat would also be likely to result in jeopardy to the species, there may be instances where section 7 consultation would be triggered only if critical habitat is designated. Examples could include unoccupied habitat or occupied habitat that may become unoccupied in the future. There may also be some educational or informational benefits to designating critical habitat. Therefore, we find that critical habitat is prudent for the riparian brush rabbit and riparian woodrat.

The Final Listing Priority Guidance for FY 2000 (64 FR 57114) states that the processing of critical habitat determinations (prudency and determinability decisions) and proposed or final designations of critical habitat will no longer be subject to prioritization under the Listing Priority Guidance. Critical habitat determinations, which were previously included in final listing rules published in the Federal Register , may now be processed separately, in which case stand-alone critical habitat determinations will be published as notices in the Federal Register . We will undertake critical habitat determinations and designations during FY 2000 as allowed by our funding allocation for that year. As explained in detail in the Listing Priority Guidance, our listing budget is currently insufficient to allow us to immediately complete all of the listing actions required by the Act. Deferral of the critical habitat designation for the riparian brush rabbit and riparian woodrat will allow us to concentrate our limited resources on higher priority critical habitat and other listing actions, while allowing us to put in place protections needed for the conservation of the riparian brush rabbit and riparian woodrat without further delay. However, because we have successfully reduced, although not eliminated, the backlog of other listing actions, we anticipate in FY 2000 and beyond giving higher priority to critical habitat designation, including designations deferred pursuant to the Listing Priority Guidance, such as the designation for these species, than we have in recent fiscal years.

We plan to employ a priority system for deciding which outstanding critical habitat designations should be addressed first. We will focus our efforts on those designations that will provide the most conservation benefit, taking into consideration the efficacy of critical habitat designation in addressing the threats to the species, and the magnitude and immediacy of those threats. We will develop a proposal to designate critical habitat for the riparian brush rabbit and riparian woodrat as soon as feasible, considering our workload priorities. Unfortunately, for the immediate future, most of Region 1's listing budget must be directed to complying with numerous court orders and settlement agreements, as well as due and overdue final listing determinations (like the one at issue in this case).

Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain activities. Recognition through listing encourages and results in conservation actions by Federal, State, local agencies, private organizations, and individuals. The Act provides for possible land acquisition and cooperation with the State and requires that recovery actions be carried out for all listed species. The protection required of Federal agencies and the prohibitions against certain activities involving listed species are discussed, in part, below.

Section 7(a) of the Act, as amended, requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is being designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into formal consultation with us. As part of our outreach efforts, we will notify the Corps and U.S. Bureau of Reclamation (BOR), as well as affected landowners, to ensure they are aware of the species' presence and clarify their obligations in protecting both species under the Act.

Federal actions that may require conference or consultation with us include activities by the Corps that fund or authorize levee and channel maintenance projects along the lower San Joaquin River and its tributaries, the operation of upstream water storage facilities and dams by the Corps and BOR, and oversight of flowage (flood) and restoration easements by the Corps over riparian lands downstream from these dams. Additionally, the Federal Emergency Management Agency may be required to consult if an emergency action affected either of these subspecies.

Listing the riparian brush rabbit and riparian woodrat as endangered triggers the development of a recovery plan. Such a plan establishes a conservation framework for State, Federal, and local governmental planning. The plan sets recovery priorities and estimates costs of various tasks necessary to accomplish them. The plan also would describe site-specific management actions necessary to achieve conservation and survival of these subspecies. The riparian brush rabbit and the riparian woodrat are both included in the final “Recovery Plan for Upland Species of the San Joaquin Valley, California” (Service 1998), and thus the recovery planning process is already under way.

The Act and implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered wildlife. The prohibitions, codified at 50 CFR 17.21, in part, make it illegal for any person subject to the jurisdiction of the United States to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these), import or export, ship in interstate commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any listed species. It also is illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to our agents and State conservation agencies.

We may be able to issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22 and 17.23. Such permits are available for scientific purposes, to enhance the propagation or survival of the species, and/or for incidental take in connection with otherwise lawful activities. Under some circumstances, we can issue permits for a specified period for species in trade in order to relieve undue economic hardship that would be suffered if such relief were not available.

Our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), is to identify to the maximum extent practicable at the time a species is listed those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of listing on proposed and ongoing activities within the species' range and to assist the public in identifying measures needed to protect the species. We believe that, based on the best available information, the following actions would not likely result in a violation of section 9:

(1) Possession of legally acquired riparian brush rabbits and riparian woodrats;

(2) Light to moderate livestock grazing that prevents or minimizes the encroachment of invasive plant species;

(3) Federally approved projects that involve activities such as discharge of fill material, draining, ditching, tiling, pond construction, stream channelization or diversion, or alteration of surface or ground water into or out of riparian areas ( i.e., due to roads, impoundments, discharge pipes, storm water detention basins, etc.), or wildlife habitat restoration, when such activity is conducted in accordance with any reasonable and prudent measures given by us in accordance with section 7 of the Act;

(4) Ongoing activities at the Park that are compatible with sustaining a viable population of both subspecies. These activities include camping and recreational activities such as picnicking, swimming, hiking, and fishing, as well as routine operations such as wildfire management, mowing, trail clearing, repairing water and sewer lines, removing hazardous trees, and the application of insecticides and herbicides rodenticides consistent with label instructions and restrictions.

Activities that we believe could potentially harm the riparian brush rabbit and the riparian woodrat and result in a violation of section 9 include, but are not limited to, the following:

(1) Unauthorized collecting, handling, or holding in captivity of either of these subspecies;

(2) Unauthorized destruction/alteration of the subspecies habitat through the discharge of fill material, draining, ditching, tiling, pond construction, stream channelization or diversion, or the alteration of surface or ground water flow into or out of a riparian area ( i.e., due to roads, impoundments, discharge pipes, storm water detention basins, etc.);

(3) Violation of discharge permits;

(4) Burning, cutting, or mowing of riparian vegetation, repairing water and sewer lines, and the spraying of insecticides or herbicides, if conducted in an untimely or inappropriate manner ( e.g., when individuals of these subspecies would be killed or injured, when reproductive efforts would be disrupted);

(5) Rodenticide applications if conducted in an untimely or inappropriate manner, or in violation of label restrictions;

(6) Discharges or dumping of toxic chemicals, silt, or other pollutants (i.e., sewage, oil, and gasoline) onto land supporting these subspecies; and

(7) Interstate and foreign commerce (commerce across State lines and international boundaries) and import/export (as discussed earlier in this section) without prior obtainment of an endangered species permit. Permits to conduct these activities are available for purposes of scientific research and enhancement of propagation or survival of the species.

Questions regarding whether specific activities may constitute a violation of section 9 should be directed to the Field Supervisor of our Sacramento Field Office (see ADDRESSES section). Requests for copies of the regulations concerning listed wildlife and general inquiries regarding prohibitions and permits may be addressed to the U.S. Fish and Wildlife Service, Ecological Services, Endangered Species Permits, 911 N.E. 11th Avenue, Portland, Oregon, 97232-4181 (telephone 503/231-2063; facsimile 503/231-6243).

We have determined that we do not need to prepare Environmental Assessments and Environmental Impact Statements, as defined under the authority of the National Environmental Policy Act of 1969, in connection with regulations adopted pursuant to section 4(a) of the Endangered Species Act of 1973, as amended. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

This rule does not contain any information collection requirements for which the Office of Management and Budget (OMB) approval under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. is required. An information collection related to the rule pertaining to permits for endangered and threatened species has OMB approval and is assigned clearance number 1018-0094. This rule does not alter that information collection requirement. For additional information concerning permits and associated requirements for endangered species, see 50 CFR 17.22.

A complete list of all references we cited, as well as others, is available upon request from the Field Supervisor, U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office (see ADDRESSES section).

Author. The primary authors of this final rule are Heather Bell and Diane Windham, U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office (see ADDRESSES section), telephone 916/414-6600.

NMFS manages fishing for groundfish by U.S. vessels in the exclusive economic zone of the Bering Sea and Aleutian Islands according to the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMP). The North Pacific Fishery Management Council (Council) prepared the FMP under authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Regulations governing fishing by U.S. vessels and implementing the FMP appear at 50 CFR parts 600 and 679.

On June 4, 1998 (63 FR 30381), NMFS published a final rule implementing catch monitoring and observer coverage requirements for all vessels and processors participating in the multispecies (MS) CDQ fisheries. On April 26, 1999 (64 FR 20210), NMFS extended these requirements to vessels equal to or greater than 60 ft (18.3 m) length overall (LOA) that participate in the halibut CDQ fishery. These regulations were implemented because in the CDQ fisheries, all groundfish and prohibited species catch by vessels fishing for CDQ groups accrue against the CDQ groups' individual allocations. Because individual vessels, processors, and CDQ groups are accountable for the catch of groundfish and prohibited species, the catch monitoring standards must be more stringent than in many other fisheries. These final rules also implemented experience and training requirements for observers that, in most cases, exceeded the requirements in the non-CDQ fisheries.

Table 1 summarizes the current observer coverage requirements for the CDQ fisheries at 50 CFR 679.50(c) and (d). Table 2 summarizes the experience requirements necessary for a CDQ observer and a lead CDQ observer at 50 CFR 679.50(h).

At the time of initial implementation of the MS CDQ Program, lead CDQ observers were required on all vessels and in the shoreside processing plants because NMFS believed that the CDQ observers needed prior experience on a vessel using the same gear type or in a shoreside plant in order to collect the data needed to manage the CDQ fisheries. However, after reviewing the first year of the MS CDQ fisheries in December 1999, NMFS believes that reductions in some CDQ observer coverage requirements could be made without reducing the quality or quantity of data collected by observers to manage the CDQ fisheries. This action would remove the requirement for a CDQ observer in some shoreside processing plants; reduce the requirement from a lead CDQ observer to a CDQ observer at other shoreside processing plants and on some catcher vessels; and allow the CDQ observer on some catcher vessels to monitor the delivery in the shoreside processing plant.

These reductions in observer coverage requirements for the CDQ fisheries are being made under an inseason adjustment allowed under 50 CFR 679.50(e). This regulation allows the Administrator, Alaska Region, NMFS (Regional Administrator), to adjust the observer coverage requirements in 50 CFR 679.50(c) and (d) to improve the accuracy, reliability, and availability of observer data as long as changes are based on a finding that: (1) fishing methods, times, areas, or catch or bycatch composition for a specific fishery or fleet component have changed significantly, or are likely to change significantly; or (2) such modifications are necessary to improve data availability or quality in order to meet specific fishery management objectives.

NMFS finds that the second condition is applicable in this case. These reductions in observer coverage requirements are necessary to improve data availability in order to meet specific fishery management objectives for the CDQ Program for the following reasons. 1999 was the first full year of fishing under new requirements for CDQ observers who have prior experience and additional training, and for lead CDQ observers who have prior experience on vessels with specific gear types or in shoreside processing plants. Some vessels and processors had difficulty obtaining CDQ observers that met the criteria as a lead CDQ observer for the particular vessel or processor type. When an observer is not available, the vessel operator or processing plant manager must decide between not fishing or taking a delivery when they want to, or not complying with the observer coverage requirements. An inseason adjustment to observer coverage requirements in the CDQ fisheries will reduce the need for lead CDQ observers for some vessels and processors, thereby increasing the availability of CDQ observers for all CDQ fisheries and increasing the flexibility of the observer contractors in selecting observers for deployment in the CDQ fisheries. Also, this action will reduce the possibility that vessels and processors participating in the CDQ fisheries will do so without the required observer coverage.

NMFS is developing proposed rulemaking that would permanently implement these reductions in future years. However, it is unlikely that this rulemaking would be implemented until late in 2000. An inseason adjustment would accomplish the recommended reductions in observer coverage and improve the chances of obtaining quality data to manage the CDQ fisheries in 2000. Therefore, in accordance with § 679.50(e), the Regional Administrator makes the following adjustments in observer coverage and experience requirements:

1. The requirement for a lead CDQ observer on all catcher vessels using trawl gear will be reduced to require only a CDQ observer. This reduction is justified because the vessel must retain all groundfish CDQ and salmon prohibited species quota (PSQ) and deliver it to a shoreside processor, where it is sorted by species, weighed, and reported to NMFS. The observer on the vessel estimates the at-sea discards of halibut PSQ and crab PSQ and monitors compliance with retention requirements. NMFS believes that these duties can be performed adequately by a CDQ observer who has prior observing experience and that the vessel-specific experience is not necessary.

2. The requirement for a lead CDQ observer on a catcher vessel using nontrawl gear and choosing to retain all groundfish CDQ species (Option 1 defined at 50 CFR 679.32(c)(2)(ii)(A)) will be reduced to require only a CDQ observer. Catcher vessels " 60 ft (18.3 m) LOA using nontrawl gear may select one of two options as the basis for CDQ catch accounting. Option 1 requires the vessel operator to retain all CDQ species and deliver them to a processor where they are sorted by species, weighed, and reported to NMFS. Under this option, CDQ catch accounting is based on the processor's reports for groundfish CDQ on the observer data for halibut PSQ. NMFS believes the gear specific experience of a lead-CDQ observer is unnecessary. NMFS will continue to require a lead CDQ observer on catcher vessels using nontrawl gear that choose to use observer data as the basis for all CDQ catch accounting (Option 2 defined at 50 CFR 679.32(c)(2)(ii)(B)).

3. The requirement for a CDQ observer of any type at the shoreside plant to monitor deliveries from catcher vessels using nontrawl gear and selecting Option 2 would be removed entirely. Under Option 2, only data collected by the observer on the catcher vessel is used for CDQ catch accounting. Therefore, a lead CDQ observer or a CDQ observer is not necessary at the plant to monitor the sorting and weighing of the CDQ delivery.

4. The requirement for a lead CDQ observer in a shoreside processing plant to monitor CDQ deliveries, except deliveries from catcher vessels using nontrawl gear and selecting Option 2, would be reduced to require only a CDQ observer. NMFS has determined that experience in a shoreside plant is not necessary for the observer to adequately monitor the sorting and weighing of CDQ deliveries.

5. The observer coverage requirements for shoreside processors taking CDQ deliveries from catcher vessels equal to or greater than 60 feet (18.3 m) length overall (LOA) using nontrawl gear and using Option 1 (full retention) for CDQ catch accounting will be reduced to allow the vessel observer to monitor the CDQ delivery in the processing plant. A separate CDQ observer for the shoreside processor is not necessary if the vessel observer can monitor the sorting and weighing of catch at the shoreside processor without exceeding the statutory working hour limits. Under this revision, the shoreside processor could still choose to provide an additional observer at the processing plant if the shoreside processor did not want its activities to be limited by the working hour limits for the vessel observer.

The Assistant Administrator for Fisheries, NOAA, finds for good cause that providing prior notice and public comment of this action is impracticable and contrary to the public interest. Without this inseason adjustment, NMFS anticipates increased noncompliance with observer coverage requirements and an overall reduction in the level and quality of observer data. This impact is undesirable and potentially detrimental to the management of the North Pacific groundfish fisheries. Further, the interim adjustment relieves a restriction on affected industry members. Under §§ 679.50(e) and 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until March 9, 2000. This action is authorized by §§ 679.50 and 679.25 and is exempt from review under Executive Order 12866.