On November 15, 1999, the Office of Personnel Management (OPM) published a proposed rule (64 FR 61793) to abolish the King, Washington, nonappropriated fund (NAF) Federal Wage System (FWS) wage area, establish a new Snohomish, WA, NAF FWS wage area, and remove Whatcom County, WA, as an area of application. Under section 5343 of title 5, United States Code, OPM is responsible for defining FWS wage areas. For this purpose, we follow the regulatory criteria established in § 532.219(b) of title 5, Code of Federal Regulations.

The King wage area currently has one survey county, King County, and four area of application counties, Island, Snohomish, Whatcom, and Yakima Counties, WA. The closure of the King wage area's host activity, Naval Station Puget Sound, left the Department of Defense (DOD) without an activity in the survey area with the capability to conduct annual local NAF wage surveys. In July 1996, DOD scheduled a full-scale wage survey in the King NAF wage area. The local wage survey committee had to conduct the King survey from Naval Station Everett in Snohomish County. Because the host installation closed and relocated to Snohomish County, we are establishing Snohomish County as a new NAF wage area. Snohomish County meets the regulatory requirements for an NAF survey area. Approximately 103 NAF FWS employees work at Naval Station Everett, and the base has the capability to host annual local wage surveys. Also, Snohomish County has more than the required minimum number of private enterprise employees in establishments within survey specifications.

We are removing Whatcom County from an NAF wage area definition because Blaine Air Force Station has closed, and NAF FWS employees no longer work in the county. Under 5 U.S.C. 5343(a)(1)(B)(i), NAF wage areas “shall not extend beyond the immediate locality in which the particular prevailing rate employees are employed.” Therefore, we are not defining Whatcom County to an NAF wage area.

The new Snohomish, WA, NAF wage area will have one survey county, Snohomish County, and three area of application counties, Island, King, and Yakima Counties, WA. DOD will order full-scale wage surveys in the Snohomish, WA, NAF wage area in July of even fiscal years, with the first full-scale wage survey for the Snohomish wage area beginning in July 2000. The Federal Prevailing Rate Advisory Committee, the national labor-management committee responsible for advising OPM on matters concerning the pay of FWS employees, has reviewed and concurred by consensus with these changes. The proposed rule had a 30-day public comment period, during which OPM did not receive any comments.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because it will affect only Federal agencies and employees.

Accordingly, the Office of Personnel Management amends 5 CFR part 532 as follows:

This rule is issued under Marketing Order No. 985, as amended (7 CFR part 985), regulating the handling of spearmint oil produced in the Far West (Washington, Idaho, Oregon, and designated parts of Nevada and Utah), hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (Department) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, Far West spearmint oil handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable spearmint oil beginning June 1, 2000, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with the Secretary a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing the Secretary would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review the Secretary's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule decreases the assessment rate established for the Committee for the 2000-2001 and subsequent marketing years from $0.10 per pound to $0.09 per pound of spearmint oil handled.

The spearmint oil order provides authority for the Committee, with the approval of the Department, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers of spearmint oil. They are familiar with the Committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 1995-1996 and subsequent marketing years, the Committee recommended, and the Department approved, an assessment rate that would continue in effect from marketing year to marketing year unless modified, suspended, or terminated by the Secretary upon recommendation and information submitted by the Committee or other information available to the Secretary.

The Committee met on February 23, 2000, and unanimously recommended 2000-2001 expenditures of $212,900 and an assessment rate of $0.09 per pound of spearmint oil handled. In comparison, last year's budgeted expenditures were $219,028. The assessment rate of $0.09 is $0.01 lower than the rate currently in effect. The Committee discussed assessment rates both lower and greater than $0.09 per pound. However, the Committee decided that an assessment rate of less than $0.09 would not generate the income necessary to administer the program with an adequate reserve. The Committee recommended the decreased assessment rate to help offset the negative effects the current depressed spearmint oil market is having on the industry.

Expenditures recommended by the Committee for the 2000-2001 marketing year include $178,500 for Committee expenses and $34,400 for administrative expenses. For 2000-2001, a total of $156,000 is budgeted for agency fees, $21,000 is budgeted for Committee per diem and travel, $16,500 is budgeted for agency staff travel, and $10,700 is budgeted for copying, mail handling, postage, telephone and fax, cellular phone charges, officer liability insurance, and auditing. Actual expenses for these items in 1999-2000 are estimated to total $165,000, $22,133, $16,843, and $10,900. For 2000-2001, funds also are budgeted for market development ($5,000) and for compliance ($1,000). Expenditures for these items in 1999-2000 are expected to total $5,000.

The Committee estimates that spearmint oil sales for the 2000-2001 marketing year will be approximately 2,058,474 pounds, which should provide $185,263 in assessment income. This assessment income, when combined with $13,029 from the monetary reserve, $3,500 in interest income, and $11,108 from the sale of certain assets should be adequate to meet this year's expenses of $212,900. The Committee estimates that its monetary reserve will be approximately $156,757 at the beginning of the 2000-2001 marketing year. It is not anticipated that the reserve fund will exceed the maximum permitted by the order of approximately one marketing year's operational expense (§ 985.42).

The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by the Secretary upon recommendation and information submitted by the Committee or other available information.

Although this assessment rate is effective for an indefinite period, the Committee will continue to meet prior to or during each marketing year to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or the Department. Committee meetings are open to the public and interested persons may express their views at these meetings. The Department will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's 2000-2001 budget and those for subsequent marketing years will be reviewed and, as appropriate, approved by the Department.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, the AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility. There are 7 spearmint oil handlers subject to regulation under the marketing order and approximately 119 producers of Scotch spearmint oil and 105 producers of Native spearmint oil in the regulated production area. Small agricultural service firms are defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $5,000,000, and small agricultural producers have been defined as those whose annual receipts are less than $500,000.

Based on the SBA's definition of small entities, the Committee estimates that 2 of the 7 handlers regulated by the order could be considered small entities. Most of the handlers are large corporations involved in the international trading of essential oils and the products of essential oils. In addition, the Committee estimates that 25 of the 119 Scotch spearmint oil producers and 7 of the 105 Native spearmint oil producers would be classified as small entities under the SBA definition. Thus, a majority of handlers and producers of Far West spearmint oil may not be classified as small entities.

This rule decreases the assessment rate established for the Committee and collected from handlers for the 2000-2001 and subsequent marketing years from $0.10 per pound to $0.09 per pound of spearmint oil handled. The Committee estimates that spearmint oil sales will total 2,058,474 pounds in the 2000-2001 marketing year. The $0.09 per pound assessment rate should provide an estimated income of $185,263, which, when combined with $13,029 from the monetary reserve, $3,500 in interest income, and $11,108 from the sale of certain assets should be adequate to meet this year's expenses of $212,900. The Committee estimates that its monetary reserve will be approximately $156,757 at the beginning of the 2000-2001 marketing year and that the fund will not exceed the maximum permitted by the order of approximately one marketing year's operational expense (§ 985.42).

The Committee reviewed and unanimously recommended 2000-2001 expenditures of $212,900 which is $6,128 less than approved for last year. Prior to arriving at this budget, the Committee considered information from various sources, including the Committee's Executive Committee and the current marketing year's actual and anticipated expenditures. Alternative expenditure levels and assessment rates were discussed by the Committee officers prior to presentation to the full Committee for approval. The Committee decided that an assessment rate of less than $0.09 would not generate the income necessary to administer the program with an adequate reserve. The Committee recommended the decreased assessment rate to help offset the negative effects the current depressed spearmint oil market is having on the industry.

Expenditures recommended by the Committee for the 2000-2001 marketing year include $178,500 for Committee expenses and $34,400 for administrative expenses. For 2000-2001, a total of $156,000 is budgeted for agency fees, $21,000 is budgeted for Committee per diem and travel, $16,500 is budgeted for agency staff travel, and $10,700 is budgeted for copying, mail handling, postage, telephone and fax, cellular phone charges, officer liability insurance, and auditing. Actual expenses for these items in 1999-2000 are estimated to total $165,000, $22,133, $16,843, and $10,900. For 2000-2001, funds also are budgeted for market development ($5,000) and for compliance ($1,000). Expenditures for these items in 1999-2000 are expected to total $5,000.

Based on 1999 prices, the average price paid to producers for both Scotch and Native spearmint oils during the 2000-2001 marketing year could be about $9.80 per pound. Therefore, the estimated assessment revenue for the 2000-2001 marketing year as a percentage of total producer revenue could be about 0.92 percent.

This action decreases the assessment obligation imposed on handlers. While this rule will impose some additional costs on handlers, the costs are minimal and in the form of uniform assessments on all handlers. Some of the additional costs may be passed on to producers. However, these costs will be offset by the benefits derived by the operation of the order. In addition, the Committee's meeting was widely publicized throughout the Far West spearmint oil industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the February 23, 2000, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.

This action imposes no additional reporting or recordkeeping requirements on either small or large spearmint oil handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

The Department has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at the following web site: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect because: (1) The 2000-2001 marketing year begins June 1, 2000, and the marketing order requires that the rate of assessment for each marketing year apply to all assessable spearmint oil handled during such marketing year; (2) this action decreases the assessment rate for assessable spearmint oil beginning with the 2000-2001 marketing year; (3) handlers are aware of this action which was unanimously recommended by the Committee at a public meeting and is similar to other assessment rate actions issued in past years; and (4) this interim final rule provides a 60-day comment period, and all comments timely received will be considered prior to finalization of this rule.

Interested persons are invited to comment on this rule. A 30-day comment period is provided. This period is deemed appropriate because the 2000-2001 marketing year begins June 1, 2000.

GIPSA is amending existing scales and weighing regulations to include requirements regarding the weighing of feed when the weight of feed is a factor in determining payment or settlement to livestock growers and poultry growers when livestock or poultry is produced under a livestock or poultry growing arrangement.

On February 12, 1997, GIPSA published an Advance Notice of Proposed Rulemaking (ANPRM) (62 FR 5935-5937) soliciting comments from poultry growers, integrators, and other interested parties on the need for and the possible wording of regulations regarding comparison contracts, feed weighing procedures, and live poultry weighing. GIPSA received 3,415 comments, of which 1,129 expressed concerns regarding feed weighing procedures including concerns that feed is not properly weighed; the weight should be printed electronically and not handwritten; the truck delivering the feed should be sealed to secure each individual lot of feed; and excess feed that is returned should be measured and properly documented to credit the grower for the unused feed.

Many of those comments also suggested that feed scales should be better regulated by requiring semiannual testing by competent testing agencies or companies as is currently required for scales used to weigh live poultry. In addition, GIPSA received comments prior to initiating this rulemaking process from livestock growers and continues to receive complaints that indicate that these same concerns exist in the livestock industry. Furthermore, GIPSA continues to receive complaints from individual livestock growers and poultry growers concerning feed weights both with respect to feed deliveries and excess feed picked up or returned at the end of the growing cycle.

On April 2, 1999, GIPSA published a Notice of Proposed Rulemaking (NPRM) (64 FR 15938—15942) proposing to amend existing scales and weighing regulations under the P&S Act to include requirements regarding the weighing of feed whenever the weight of feed is a factor in determining payment or settlement to a livestock grower or poultry grower when livestock or poultry is produced under a livestock or poultry growing arrangement.

We received 37 comments in response to the NPRM. Of the comments received, 25 supported the NPRM, 7 opposed, 2 were neutral and 3 commented on issues other than those proposed in the NPRM. Commenters were located in the States of Alabama (1), Arkansas (5), Delaware (2), Georgia (2), Iowa (1), Maryland (1), Minnesota (3), Mississippi (1), Missouri (2), North Carolina (3), Pennsylvania (1), Virginia (3), and West Virginia (1). State location could not be determined for 6 commenters, and 5 commenters were from the District of Columbia. Comments were received from: poultry trade associations (8), producer and grower associations (5), poultry growers (14), poultry integrators (7), feed companies (2), and a state weights and measures department.

Six growers commented that the proposed regulation changes would help ensure fair dealings between contract growers and integrators. A poultry integrator and a national trade association, which represents the producers/processors of more than 95 percent of the broiler/fryer chickens marketed in the United States, commented that the amendment will help to alleviate concerns that some growers have with respect to weighing feed. Three poultry integrators commented that the proposed feed weighing regulation either was reasonable, has been standard procedure in their firms for many years, or does not differ greatly from their present practices. A State farm association, whose State's poultry production was $730 million in cash receipts, commented it believes the substantive regulation governing feed weighing will improve company accuracy and fairness in determining growers' individual pay within a competitive pay or settlement system as well as the accountability of individual companies and production complexes. The nation's largest general farm association commented that GIPSA's action to strengthen production contract-related feed weighing rules is consistent with GIPSA's mission to facilitate the marketing of grains, livestock, poultry, and meat. A farmers' association, with 300,000 farm and ranch members, commented it believes the proposed rule is a good first step and supports the proposed rule. A national grower association stated that this rule is very important, and the rule should go a long way towards ensuring accurate weighing. A State poultry association and a national poultry association, which represents more than 95 percent of the U.S. turkey industry including all phases of growing and processing, commented that they support the basic concept of amending the regulations to regulate the weighing of feed under the P&S Act. A broiler trade association commented that, in general, it commends GIPSA for the proposed rule.

Seven comments were filed in opposition to the NPRM. There were two general reasons given for opposing the NPRM. One was that the rule was not needed, and the other was that the rule did not go far enough. A feed company and a national trade association, representing about 1,000 grain, feed, processing, and grain-related firms comprising 5,000 facilities that handle more than two-thirds of all U.S. grains and oilseeds, commented that several provisions are redundant or inconsistent with existing Federal and State regulatory requirements that govern scales used to weigh feed. These comments cited two regulations: 21 CFR 225.30 and 225.130. These two regulations pertain to scales used in the production of a medicated feed of intended potency and purity and do not regulate scales used to weigh feed where the weight of feed is a factor in determining payment or settlement to livestock growers or poultry growers.

A State trade association, representing country elevators and feed mills, commented that the NPRM unfairly focuses too much attention on feed weighing and feed delivery as factors affecting feed efficiency contracts and not enough on other factors such as ration density, sanitation and disease. Two growers commented that the proposed feed weighing regulation is inadequate to ensure that feed is accurately weighed or reasonably determined.

Many commenters, both those in general support of and those in opposition to the rule, raised some objections or concerns about some part of the NPRM. These objections or concerns regarding the NPRM and GIPSA's response to those comments are as follows.

Comment: Seals—Thirteen commenters mentioned the use of seals to seal feed bins or feed compartments. The comments ranged from seeing the use of seals as a small step forward or as a burden. The majority of the comments questioned the need for seals or objected to their use.

Response: The proposed rule does not require each feed bin or feed compartment be sealed. However, if a feed supplier uses seals to help assure the grower receives all of his or her feed, the proposed rule requires a feed supplier to use numbered seals and record the seal numbers on the weigh ticket.

Comment: Pick Up of Excess Feed—Eleven comments were received regarding excess feed that is picked up from a grower and the NPRM's proposal that § 201.55(b) require the weight of excess feed be “reasonably determined” using a “mutually acceptable” method. The comments ranged from asserting the language will not work, to suggesting that the language be clarified to indicate that alternative systems to weighing picked up excess feed on a scale are acceptable to determine feed weight.

Response: To address the concerns raised in these comments, we have changed the language in § 201.55(b) to read as follows. “Whenever the weight of feed is a factor in determining payment or settlement to such livestock grower or poultry grower when the livestock or poultry is produced under a livestock or poultry growing arrangement, any feed that is picked up from or returned by a livestock grower or poultry grower must be weighed or its weight must be reasonably determined. When feed is picked up or returned and not weighed, the stockyard owner, market agency, dealer, packer, or live poultry dealer must document that the method used reasonably determines weight and is mutually acceptable to it and the livestock grower or poultry grower. The stockyard owner, market agency, dealer, packer, or live poultry dealer must document and account for the picked up or returned feed weight.”

Comment: Scale Ticket Printing and Completion—Nine commenters mentioned scale ticket printing and completion. The comments primarily requested clarification on the information needed to adequately identify the feed delivery vehicle and grower/lot identification.

Response: The amendment to § 201.49 requires that scale tickets evidencing the weighing of feed contain the same information that is required on scale tickets completed when weighing live poultry except that scale tickets do not need to include weather conditions or the number of poultry.

Comment: Printing Tare, Gross and Net Weight—Eight comments were received related to printing tare, gross and net weight. The comments ranged from suggesting that handwritten net weight determined from mechanically printed gross and tare should be acceptable, to suggesting that printing a net weight on bulk weighing systems should be sufficient.

Response: If the net weight is determined by the difference between scale-printed tare and gross weights and the mechanical or electronic printer does not have the capability to print the net weight, the net weight can be handwritten. On bulk weighing systems where only the net weight is determined, the gross and tare weights do not have to be printed.

Comment: Scale Testing and Providing Report of Test to P&S Regional Offices—Five comments were received regarding testing and submission of the test reports to the P&S regional offices. The comments ranged from suggesting that this provision is redundant or inconsistent with existing Federal and State regulatory requirements for scales used to weigh feed to suggesting that scale test reports not be sent to the regional offices.

Response: GIPSA's research did not identify any other Federal agency that has jurisdiction over all scales used to weigh feed where the weight of the feed is a factor in determining payment or settlement to livestock growers or poultry growers. The rule imposes the same requirements for scales used to weigh feed as for all other scales used by industry members who are subject to the P&S Act, including the requirement that scale test reports be sent to the appropriate P&S regional office.

Comment: Qualified Scale Operator—Three comments were received requesting that “qualified” be defined or requesting guidance on what certification or training is required by the rule.

Response: A scale operator is “qualified” if the operator is trained to operate scales in a manner that assures the accurate weight of livestock, livestock carcasses, live poultry, or feed. The rule does not require a specific training method to qualify someone to operate scales.

GIPSA received several comments related to feed weighing but not directly related to the rule. These comments and GIPSA's response to the comments follow:

Comment: GIPSA has specific authority to request the reweighing of livestock; however, no amendments were proposed to extend the Agency's authority to cover feed.

Response: Sections 402 and 407 of the P&S Act (7 U.S.C. 222, 228) grant the Secretary the authority to issue regulations as may be necessary to carry out the provisions of the Act. Inaccurately weighed feed may preclude full payment to growers. Therefore, weighing feed inaccurately would constitute an unfair practice under sections 202 and 312 of the Act. 7 U.S.C. 192, 213. Sections 402 and 407 authorize the Secretary to promulgate regulations governing the weighing of feed when feed weight affects payment or settlement to a producer or grower and to prevent violation of the Act. Therefore, no amendment to GIPSA's authority is necessary.

Comment: The rule should provide for compensation to growers (livestock and poultry), plus punitive damages against integrators (live poultry dealers).

Response: Administrative sanctions for violations of the Act by livestock firms are set forth in sections 203(b) (packers) and 312(b) (stockyard owners, market agencies, or dealers) of the P&S Act. 7 U.S.C. 193(b), 213(b). Administrative sanctions for certain violations of the Act by live poultry dealers are set forth in section 411 of the Act. 7 U.S.C. 228b-2. Section 404 sets forth the procedures for prosecuting violations not covered by section 411. 7 U.S.C. 224. Section 308 of the Act sets forth the liability of subject entities to injured persons and the procedures to pursue a private right of action. 7 U.S.C. 209.

Comment: The rule should allow the grower (livestock or poultry) to be present for weighing if the grower so chooses.

Response: The rule does not address this issue. However, livestock growers and poultry growers have the right to be present during the weighing of feed whenever the weight of feed is a factor in determining payment or settlement under a livestock or poultry growing arrangement.

Comment: The rule should allow a grower to require feed trucks to weigh feed at the farm if the grower has a scale.

Response: The rule does not address this issue. We do not have jurisdiction over growers, and we cannot require growers to maintain scales in compliance with regulations promulgated under the P&S Act.

The rule addresses the concerns of livestock growers and poultry growers who produce livestock or poultry under a livestock or poultry growing arrangement. When the weight of the feed is a factor in determining payment or settlement to livestock growers or poultry growers, the rule requires stockyard owners, market agencies, dealers, packers, or live poultry dealers to weigh feed accurately, to weigh or reasonably determine the weight of excess feed that is picked up from or returned by the livestock grower or poultry grower and to properly account for feed weight. “Growing arrangement” with respect to poultry means “poultry growing arrangements” as defined in section 2(a)(9) of the Act (7 U.S.C. § 183(a)(9)). “Growing arrangement” with respect to livestock means an arrangement in which livestock is produced under contract with a packer. Weight of feed is not considered to be a factor in determining payment to livestock producers in feedlot transactions in which the producer is charged a fee based on feed costs.

All feed scales, including those which are not generally used to sell directly to the general public and are usually not required to be tested by State weights and measures officials, fall under the purview of this rule. In most States, feed scales are not considered commercial devices unless the feed is sold directly to the general public. Therefore, State regulatory oversight of the weighing of feed delivered to livestock growers or poultry growers is not adequate to address the growers' concerns. Extending existing regulations of the P&S Act governing weighing practices and technical requirements for scales to include scales used to weigh feed will result in uniform requirements for weighing feed whenever feed weight affects the payment or settlement to livestock growers and poultry growers when livestock or poultry is produced under a livestock or poultry growing agreement. Basic scale requirements and weighing practices, therefore, will assure that payment or settlement is based on accurate weights whenever feed weight affects payment or settlement to livestock growers or poultry growers in livestock and poultry growing arrangements.

This rule amends 9 CFR 201.49, 201.55, 201.71, 201.72, and 201.73 to include requirements regarding the weighing of feed whenever feed weight is a factor in determining payment or settlement to a livestock grower or poultry grower when livestock or poultry is produced under a livestock or poultry growing arrangement. The modifications in these sections make the requirements for feed weighing consistent with the requirements for weighing livestock and live poultry.

Specifically, the rule amends § 201.49 to include paragraph (c) which requires that scale tickets be issued whenever feed weight is a factor in determining payment or settlement to livestock growers or poultry growers when livestock or poultry is produced under a livestock or poultry growing arrangement. The amendment specifies the information that must be shown on the scale ticket. Section 201.71 is amended to require that scales weighing feed: (1) Be installed, maintained, operated, and tested in accordance with the National Institute of Standards and Technology (NIST) Handbook 44, 1996 edition, entitled “Specifications, Tolerances, and Other Technical Requirements for Weighing and Measuring Devices”; (2) be equipped with a printing device used for recording weight; (3) be of sufficient length and capacity to weigh an entire load when feed is weighed on a vehicle scale; and (4) be found, upon test and inspection, to be in a condition to provide accurate weight. Section 201.72 is amended to include scales used to weigh feed in the requirement that scales be tested twice during each calendar year at intervals of approximately six months by competent persons and that copies of test reports be furnished to the appropriate P&S Programs' regional office. Section 201.73 is amended to require that stockyard owners, market agencies, dealers, packers and live poultry dealers employ, or insure that their feed suppliers employ, qualified persons to operate scales used to weigh feed and that they require such employees to operate these scales in accordance with the regulations.

Section 201.55 is amended to require that the actual weight of feed be shown on scale tickets or otherwise explained and that picked up or returned feed be weighed or its weight reasonably determined. The stockyard owner, market agency, dealer, packer, or live poultry dealer must document and account for the picked up or returned feed weight. The language of the amendment to section 201.55(b) has been modified slightly from the language of the proposed rule. The modification clarifies the rule's requirements but does not change the requirements as proposed in the NPRM.

This rule will not impose any significant additional regulatory burden on the affected industries since the feed scales of many subject firms are already routinely tested by State weights and measures organizations or by private scale companies. The additional recordkeeping required under this rule will impose little burden upon subject firms since a majority of the affected entities already utilize adequate weighing and documentation procedures. Subject firms that choose to use seals may incur costs to document the use of numbered seals if they are not currently documenting their use of seals. However, the use of seals is optional, and, according to seal makers contacted by the Agency, numbered seals are less expensive than unnumbered seals. Therefore, at least part of the cost of documentation may be offset by the lower cost of numbered seals.

Pursuant to Departmental policy, GIPSA has considered the potential civil rights implications of this rule on minorities, women and persons with disabilities to ensure that no person or group will be discriminated against on the basis of race, color, sex, national origin, religion, age, disability, or marital or familial status. This rule will apply in the same manner to all persons and groups whose activities are regulated, regardless of race, color, sex, national origin, religion, age, disability, or marital or familial status.

This rule has been determined to be significant for the purpose of E.O. 12866 and, therefore, has been reviewed by the Office of Management and Budget. A separate regulatory impact assessment was prepared and is available from Dr. Michael J. Caughlin, Jr., Director, Office of Policy/Litigation Support, GIPSA, USDA, 1400 Independence Ave., SW, Washington, DC 20250-3646; (202) 720-695l.

This rule has been reviewed under E.O. 12988, Civil Justice Reform, and is not intended to have retroactive effect. This amendment will not pre-empt State or local laws, regulations, or policies unless they present an irreconcilable conflict with this rule. There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of this rule.

GIPSA is amending §§ 201.49, 201.55, 201.71, 201.72, and 201.73 of Title 9 of the Code of Federal Regulations to include feed weighing when the weight of feed is a factor in determining payment or settlement to livestock growers or poultry growers. The additional information collection is required to provide livestock growers and poultry growers (generally small entities) assurance that feed scales are being tested and maintained properly, that feed is accurately weighed or its weight is reasonably determined, and that they are receiving proper and adequate documentation of the feed weight.

GIPSA has determined that this rule will not have a significant economic impact on a substantial number of small entities as defined in the Regulatory Flexibility Act (5 U.S.C. 601, et seq. ). This rule will affect both parties in growing arrangements in which the weight of feed is a factor in determining payment or settlement to a livestock grower or poultry grower. In most instances, the livestock grower or poultry grower will be a small entity and is the intended beneficiary of this rule. Because the costs of complying with this rule usually will be borne by the stockyard owner, market agency, dealer, packer or live poultry dealers, the economic impact on growers is expected to be negligible.

The costs of compliance will be borne by any stockyard owner, market agency, dealer, packer or live poultry dealer who is party to a growing arrangement in which the weight of feed is a factor in determining payment or settlement to a livestock grower or poultry grower. However, the economic impact on these entities is expected to be minimal. Approximately 260 poultry integrators currently supply feed to poultry growers and an estimated 50 additional entities operating subject to the P&S Act currently supply feed to livestock growers where the weight of feed is a factor in determining payment or settlement to livestock growers or poultry growers. Most of these 310 firms are considered small entities.

Subject firms will be responsible for ensuring that scales used to determine the weight of feed, whether theirs or their feed provider's, have a printing device and conform to the specifications of NIST Handbook 44 (H-44), 1996 edition. Scale installation companies usually do not install a scale system that would not comply with the requirements of this amendment to the regulations. Currently, most feed scales, including those used by small entities, have a weight-printing device and conform to H-44 requirements. GIPSA did not receive any comments on the NPRM from any subject entity claiming that it currently supplied feed under a growing arrangement and had no weight-printing device. One association for feed companies stated that many of its members do not have a weight-printing device, but it did not state whether any of those members also currently provide feed for a subject entity under a growing arrangement.

GIPSA contacted several scale installation companies and was advised that they would charge less than $10,000 to equip an existing scale with a printing device and any additional equipment needed for the operation of the printing device. The subject entity, including any small entity, could spread this cost over many years because a printing device and any other needed equipment are used for many years. GIPSA anticipates that the cost of equipping an existing scale with a printing device would increase the costs of doing business to live poultry dealers or their feed supplying entities, including small entities, by less than one percent. Therefore, GIPSA does not anticipate any significant economic impact on small entities.

Under this rule, subject firms will be required to test scales twice a year and to submit a copy of each test report to the appropriate P&S regional office. Feed manufacturers, as is customary in most industries dealing in bulk commodities, have their scales tested frequently to ensure accurate weights, prevent system malfunction, and avoid down time. In addition, most entities affected by this rule currently have their scales tested at least twice a year, either by State or local weights and measures officials or by private scale companies. Any of these tests will satisfy the semiannual testing requirement. Those entities currently not conducting two scale tests a year will be required to obtain a second test either from a private scale company or from a State or local weights and measures department.

There will be a minimal recordkeeping burden on all subject entities, including small entities, who weigh or supply feed when the weight of feed is a factor in determining payment or settlement to a livestock or poultry grower who produces livestock or poultry under a growing arrangement. Those entities will be required to submit a copy of scale test reports, on a semiannual basis, to the appropriate P&S regional office. This will entail obtaining a copy of the scale test report, which generally is completed either by the State or local weights and measures department or by the private scale company as a matter of routine documentation, and mailing it to the appropriate P&S regional office. Many State and local weights and measures departments and scale companies already mail the copies of the scale test reports to the appropriate P&S regional office. If any of the subject firms chooses to use seals, the additional paperwork burden will be to note the seal number(s) on the feed ticket that the subject firm is already required to supply to the grower.

Compliance with the requirements for scale tickets is projected to cause minimal burden on the industry. Those entities that do not print a scale ticket for weighed feed or that print scale tickets that do not include all the required information will have to change their procedures to print scale tickets for weighed feed and to include the required information on the scale tickets. However, the additional time to add the required information, such as truck or trailer numbers, grower's name, and whether the truck driver was on or off at the time of weighing, is insignificant.

In addition, subject firms will be required to retain weight records in accordance with the recordkeeping provisions of the Act. In general, this will not entail any retention burden beyond that of normal and customary business practices.

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3504(h)), GIPSA has submitted a copy of this rulemaking to the Office of Management and Budget (OMB) for its review. GIPSA received no response to its invitation in the NPRM to comment on the increased paperwork burden associated with this regulation. Information and reporting collection burdens imposed by Part 201 have been approved under OMB control number 0580-0015.

As part of its practice of re-examining all aspects of the service experience of a particular aircraft whenever an accident occurs, the FAA has become aware of an incident in which a broken light bulb housing of the First Officer map light was found on a McDonnell Douglas Model MD-11 series airplane. This breakage exposed the power contactor that goes to the base of the light bulb and allowed the contactor to short circuit to the lamp housing mounting plate. In another incident on the same airplane model, the light bulb housing cracked without exposing the contactor. The cause of the breakage/cracking has not been determined. A broken light bulb housing, if not corrected, could expose the power contactor and cause the Captain, First Officer, or Right Observer map light to short or overheat, which could result in smoke or fire in the cockpit.

These incidents are not considered to be related to an accident that occurred off the coast of Nova Scotia involving a McDonnell Douglas Model MD-11 series airplane. The cause of that accident is still under investigation.

The FAA, in conjunction with Boeing and operators of Model MD-11 series airplanes, is continuing to review all aspects of the service history of those airplanes to identify potential unsafe conditions and to take appropriate corrective actions. This AD is one of a series of actions identified during that process. The process is continuing and the FAA may consider additional rulemaking actions as further results of the review become available.

The FAA has reviewed and approved McDonnell Douglas Alert Service Bulletin MD11-33A069, dated March 10, 2000, which describes procedures for accomplishing either of the following actions:

• Deactivation of the map light assemblies by disconnecting, coiling, and stowing power wires to the Captain, First Officer, and Right Observer map light assemblies; or

• Modification and reidentification of the insulation blankets adjacent to the Captain and First Officer map light assemblies (for certain airplanes); a general visual inspection to detect damage of the Captain, First Officer, and Right Observer map light assemblies; and follow-on actions. The follow-on actions include repetitive inspections, replacement of the map light assembly with a new or serviceable light assembly; or deactivation of damaged map light assemblies; as applicable.

Since an unsafe condition has been identified that is likely to exist or develop on other McDonnell Douglas Model MD-11 series airplanes of the same type design, this AD is being issued to detect a broken light bulb housing, which could expose the power contactor. An exposed power contactor could result in the Captain, First Officer, or Right Observer map light shorting or overheating, and consequent smoke or fire in the cockpit. This AD requires accomplishment of the actions specified in the alert service bulletin described previously.

This is considered to be interim action. The FAA is continuing to investigate the existing design of the map light assemblies of certain configuration crew rest areas. In addition, the manufacturer has advised that it currently is developing a modification that will positively address the unsafe condition addressed by this AD. Once final action is identified, or once the modification is developed, approved, and available, the FAA may consider additional rulemaking.

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 shall identify the Rules Docket number and be submitted in triplicate 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 rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-86-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 13132.

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it is not a “significant regulatory action” under Executive Order 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 .

The West Bay Bridge has a vertical clearance of 15 feet at mean high water and 17 feet at mean low water.

The existing regulations for the bridge in 33 CFR 117.622 require the bridge to open on signal April 1 through October 31 as follows:

(1) April 1 through June 14 and October 12 through October 31; 8 a.m. to 4 p.m.

(2) June 15 through June 30; 8 a.m. to 6 p.m.

(3) July 1 through Labor Day; 8 a.m. to 8 p.m.

(4) Labor Day through October 11; 8 a.m. to 5 p.m.

(5) At all other times from April 1 through October 31, the draw shall open on signal if at least 4 hours advance notice is given.

(6) From November 1 through March 31, the draw shall open on signal if at least 24 hours advance notice is given.

The bridge owner, the Town Of Barnstable, asked the Coast Guard to allow the bridge to open on signal, from April 1, 2000 through April 30, 2000, 8 a.m. to 4 p.m., only if at least 4 hours advance notice is given by calling (508) 790-6330. These repairs are being performed during the month of April when there have been few requests to open the bridge. Mariners may use an alternate route through Cotuit Bay to avoid using the West Bay Bridge if they do not wish to provide the 4 hour advance notice for bridge openings.

In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible. This deviation is authorized under 33 CFR 117.35.

Scope: A national Postal Service electronic database for maintaining records of delivery date, time, and other information is already in place and is being used for Express Mail and Delivery Confirmation items. Testing of the database included material handling, operations, and systems tests for the capturing, routing, optical scanning, storage, and retrieval of electronic records that include a signature. Testing of this universal strategy for signature capture began in November 1998 and was completed in December 1999. The increased accessibility of an electronic database will improve customer service and response time and speed up processes involving the filing of indemnity claims.

Current Internal Use (Hardcopy Records): Delivery records are maintained for Postal Service use to reply to delivery inquiries and to substantiate indemnity claims (additional internal uses exist as well). Current delivery records include type of special service item, article number, recipient signature, printed name, delivery address, and delivery date. When applicable, the delivery record includes where a mailpiece was forwarded or if an item was returned or refused. Records are also made available to customers in the form of a Return Receipt After Mailing or Duplicate Return Receipt. The Postal Service currently maintains hardcopy delivery records for Express Mail, COD, Certified, Numbered Insured, Registered, Restricted Delivery, International Accountable, and Return Receipt for Merchandise items. Electronic records, without signature information, are maintained for Express Mail and Delivery Confirmation items in a centralized database.

Internal Use Under the New System: The use of delivery record information will not change under this program. Hardcopy delivery records filed up to the implementation of this program will be maintained for the full stated retention periods. The electronic delivery record program only applies to domestically delivered items; APO and FPO deliveries are not included, nor are the majority of deliveries to territories, possessions, and freely associated states. The electronic delivery record will include the article number, date of delivery, signature of recipient, printed name of recipient, and addressee's delivery address. Information on items that were forwarded or returned to sender will also be maintained as part of the electronic mailpiece record. All electronic delivery records will be maintained in a Postal Service centralized database. PS Form 3811-A, Domestic Return Receipt (After Mailing), will not be used to convey electronic delivery record information to customers for records stored electronically. Instead, customers will receive a dated letter, generated from the centralized database, providing one of the following: (1) The full delivery record, (2) the delivery record absent the signature/name/address information (if that information is not available), (3) a statement that the delivery record could not be found, or (4) a statement that duplicate IDs prohibited final results. These responses, with the exception of response four, are similar to the current responses provided via the PS Form 3811-A. The time to respond to customer inquiries for electronic delivery records will improve significantly.

Current Customer Use: Option 1: When a customer requests a Return Receipt After Mailing (PS Form 3811-A), the Postal Service provides the name and date of delivery only. Option 2: If a Duplicate Return Receipt is requested because the original return receipt was not provided, the Postal Service uses the delivery record to provide the recipient's name, date of delivery, and the addressee's delivery address if different from the address shown on the mailpiece. The customer is also informed if a record of delivery is not found. No actual signatures are provided with either option. All information is provided via the mail in hardcopy format.

Customer Use Under the New System: Service will be improved for Duplicate Return Receipt and Return Receipt After Mailing by the inclusion of an electronically produced image of the customer/recipient's signature, printed name, and address (when available) for items filed electronically. Requesters will receive a Duplicate Return Receipt or Return Receipt After Mailing for electronically filed items via fax or mail. The new form design is a letter which will be automatically generated by the centralized database. Requests for Duplicate Return Receipt and Return Receipt After Mailing must continue to be made at a post office.

On June 10, 1998, the Postal Service published for public comment in the Federal Register (63 FR 31815), the proposed rule to convert to a system of electronic record keeping. Seven comments from two individuals were submitted to the Postal Service regarding the Federal Register notice. These comments concentrated on the following subject areas: Inclusion of printed name on delivery receipt, multiple uses of PS Form 3849, return receipt procedures, availability of records on web site, record security, and the extension of certain special services to other classes of mail. The comments were considered in developing the final rule.

The notice stated that the capture of the recipient's printed name was optional. This has been changed in accordance with DMM section D042.1.7[b].

The notice stated that the hardcopy record will no longer be maintained. The Uniform Photographic Copies of Business and Public Records as Evidence Act (UPA) and the Federal Business Records Act have made records and copies or reproductions that produce a durable medium for reproducing the original admissible in courts of law. The original may be destroyed in the regular course of business. The new process of record storage meets these requirements, and accordingly, the Postal Service will not longer retain these items for delivery record inquiry purposes.

One comment asked how this system of electronic records will be used for recipients of large amounts of accountable mail and the completion of the return receipt (PS Form 3811). This program does not replace or change the current process for PS Form 3811, Return Receipt.

One comment stated that it would be advantageous to have delivery records available on the USPS Web site. The availability of accessing delivery records via the Internet is limited, at this time, to Express Mail and Delivery Confirmation items only, but may be expanded in the future. No signature images will be shown on the Internet for any items.

One commentor raised a question regarding system security to ensure tamper-proof records and originality. The comment asserted that the original delivery receipt must be maintained and be accessible, and that any duplicate return receipts must be validated as they presently are with both the postmark of the completing office and the initials of the postal employee. This electronic system of delivery records is designed to replace, rather than supplement, the current hardcopy filing system for the purpose of customer inquiries. The USPS database that houses delivery records is secure against outside access. Additionally, records are encrypted as they travel to and from the database to ensure record integrity. Delivery record responses will not carry a postmark or any employee designation but will be dated and clearly marked as Postal Service correspondence.

An additional comment was made on the extension of the Signature Confirmation and Delivery Confirmation services to other classes of mail besides Priority Mail and Standard Mail. The electronic record management program does not address the issue of service offerings among classes of mail.

For the reasons discussed above, the Postal Service hereby adopts the following amendments to the Domestic Mail Manual, which is incorporated by reference in the Code of Federal Regulations (see 39 CFR part 111).

The rule revisions to the California SIP are listed below.

Rule 445, Perchloroethylene Dry Cleaning, submitted 05/18/98; rescission adopted 10/03/96.

Rule 67.8, Dry Cleaning Facilities Using Halogenated Organic Solvent, submitted 07/23/99, rescission adopted 11/04/98.

Rule 4671, Perchloroethylene Dry Cleaning System, submitted 10/13/95, rescission adopted 06/15/95.

Rule 74.5.2, Dry Cleaning Facilities Using Halogenated Organic Solvents, submitted 08/10/95 revision adopted 05/09/95.

On March 3, 1978, EPA promulgated a list of ozone nonattainment areas under the provisions of the Clean Air Act, as amended in 1977 (1977 Act or pre-amended Act), that included the SMAQMD, SDCAPCD, SJVUAPCD, and VCAPCD. 43 FR 8964, 40 CFR 81.305. In response to section 110 (a) of the Act and other requirements, SMAQMD, SDCAPCD, SJVUAPCD, and VCAPCD submitted many rules which EPA approved into the SIP.

On February 7, 1996 (61 FR 4588) EPA published a final rule excluding perchloroethylene from the definition of volatile organic compound. This compound was determined to have negligible photochemical reactivity and, thus, was added to the Agency's list of Exempt Compounds.

The State of California submitted the rule revisions listed above to update the federally enforceable SIP for the SMAQMD, SDCAPCD, SJVUAPCD, and VCAPCD, and to be consistent with EPA's 1996 rulemaking. The following is EPA's evaluation and final action for each rule.

In determining whether to approve each revision to the SIP, EPA must evaluate the revisions for consistency with the requirements of the CAA and EPA regulations, as found in section 110 and part D of the CAA, and 40 CFR part 51 (Requirements for Preparation, Adoption, and Submittal of Implementation Plans). The EPA interpretation of these requirements, which forms the basis for this action, appears in various EPA policy guidance documents.

The rules that are being rescinded are not appropriate for the SIP because they do not control criteria pollutants. EPA regulates perchloroethylene as a hazardous air pollutant under section 112 of the Act.

EPA has evaluated the rule revisons and has determined that they are consistent with the CAA, EPA regulations, and EPA policy. Therefore, all of the rule revisions listed in section I, Applicability are being approved under section 110(k) of the CAA as meeting the requirements of section 110(a) and part D.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment 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 June 5, 2000 without further notice unless the Agency receives adverse comments by May 5, 2000.

If the EPA receives such comments, then EPA will publish a timely withdrawal in the Federal Register 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. Any parties interested in commenting on this rule should do so at this time. If no such comments are received, the public is advised that this rule is effective on June 5, 2000, and no further action will be taken on the proposed rule.

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

Executive Order 13045, entitled 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, Consultation and Coordination with Indian Tribal Governments, 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.

Executive Order 13121, entitled Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612, Federalism and 12875, Enhancing the Intergovernmental Partnership. 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.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

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. Thus, the requirements of section 6 of the Executive Order 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. 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 rule is not a “major” rule as defined by 5 U.S.C. 804(2).

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 June 5, 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).)

Throughout this document, “we,” “us” and “our” refer to EPA.

Table 1 lists the rule we are approving with the date that it was adopted by local air agency and submitted by the California Air Resources Board (CARB).

On December 16, 1999, this rule submittal was found to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review.

There are no previous versions of Rule 353 in the SIP and no earlier versions of this rule were adopted by the SBCAPCD.

Rule 353 limits VOC emissions from the application of adhesive and sealants. The TSD has more information about this rule and its provisions.

Generally, SIP rules must be enforceable (see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for major sources in nonattainment areas (see section 182(a)(2)(A)), and must not relax existing requirements (see sections 110(l) and 193). The SBCAPCD regulates an ozone nonattainment area (see 40 CFR part 81), so Rule 353 must fulfill RACT.

Guidance and policy documents that we used to define specific enforceability and RACT requirements include the following:

1. Portions of the proposed post-1987 ozone and carbon monoxide policy that concern RACT, 52 FR 45044, November 24, 1987.

2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations; Clarification to Appendix D of November 24, 1987 Federal Register document,” (Blue Book), notice of availability published in the May 25, 1988 Federal Register .

3. The State of California Air Resources Board's “Determination of Reasonably Available Control Technology (RACT) and Best Available Retrofit Control Technology (BARCT) for Adhesives and Sealants,” December 1998.

We believe this rule is consistent with the relevant policy and guidance regarding enforceability, RACT, and SIP relaxations. Rule 353 contains one deviation from RACT which was determined to meet EPA's 5% equivalency policy (see the Blue Book). The TSD has more information on our evaluation.

As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rule because we believe it fulfills all relevant requirements. We do not think anyone will object to this, so we are finalizing the approval without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same submitted rule. If we receive adverse comments by May 5, 2000, we will notify the public in the Federal Register that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on June 5, 2000. This will incorporate this rule into the federally enforceable SIP.

VOCs help produce ground-level ozone and smog, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control VOC emissions. Table 2 lists some of the national milestones leading to the submittal of this local agency VOC 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 June 5, 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)).

The Agency included in the final rule a list of those who may be potentially affected by this action. 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-300960A. The official record consists of the documents specifically referenced in this action, any public comments received during an applicable comment period, 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.

A final rule to establish tolerances for spinosad on various commodities was published in the Federal Register of January 12, 2000 (65 FR 1802) (FRL-6399-7). This correction is being published to establish tolerances for “animal feed, nongrass, group” at 0.02 ppm, “apple” at 0.2 ppm, “barley, grain” at 0.02 ppm, and “teosinte, grain” at 0.02 ppm which were incorrectly listed in the table in § 180.495(a).

EPA is publishing this action as a final rule without prior notice and opportunity to comment because the Agency believes that providing notice and an opportunity to comment is unnecessary and would be contrary to the public interest. As explained above, the correction contained in this action will simply correct § 180.495(a) by revising the listing and residue tolerances for commodities that were incorrectly stated. EPA therefore finds that there is “good cause” under section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 553) to make this amendment without prior notice and comment. For the same reasons, EPA also finds that there is “good cause” under FFDCA section 408(b)(2) to make this minor modification to the establishment of a tolerance without notice and comment.

No. This final rule implements technical corrections to the Code of Federal Regulations (CFR), and does not impose any new requirements.

Under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993), the Office of Management and Budget (OMB) has determined that a technical correction is not a “significant regulatory action” subject to review by OMB.

Because this action is not economically significant as defined by section 3(f) of Executive Order 12866, this action is not subject to Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997).

This action will not result in environmental justice related issues and does not, therefore, require special consideration under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994).

Since the Agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the APA or any other statute (see Unit IV.), this action is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. Nor does this action significantly or uniquely affect the communities of tribal governments as specified by Executive Order 13084, entitled Consultation and Coordination with Indian Tribal Governments (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, entitled Federalism (64 FR 43255, August 10, 1999).

This action does not involve any technical standards that require the Agency's 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).

This rule does not contain any information collection requirements that require review and approval by OMB pursuant to the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq. ).

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, as required by section 3 of Executive Order 12988, entitled Civil Justice Reform (61 FR 4729, February 7, 1996).

EPA has complied with Executive Order 12630, entitled Governmental Actions and Interference with Constitutionally Protected Property Rights (53 FR 8859, March 15, 1988), by examining the takings implications of this 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.

EPA's compliance with these statutes and Executive Orders for the underlying rule is discussed in Unit VIII. of the final rule (65 FR 1802, January 12, 2000).

Yes. The Congressional Review Act (CRA) (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 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefore, and established an effective date of April 5, 2000. 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 . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

This is a synopsis of the Commission's Report and Order, MM Docket No. 99-96; MM Docket No. 99-193; MM Docket No. 99-194; MM Docket No. 99-308; MM Docket No. 99-309; MM Docket No. 99-310, adopted March 8, 2000, and released March 17, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Service, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.

The Commission, at the request of Mountain West Broadcasting, allots Channel 279C2 at Newell, South Dakota, as the community's first local aural transmission service. See 64 FR 15713, April 1, 1999. Channel 279C2 can be allotted at Newell in compliance with the Commission's minimum distance separation requirements with a site restriction of 1.8 kilometers (1.1 miles) north to avoid a short-spacing to the licensed site of Station KIQK(FM), Channel 281C1, Rapid City, South Dakota. The coordinates for Channel 279C2 at Newell are 44-43-58 North Latitude and 103-25-18 West Longitude.

The Commission, at the request of Mountain West Broadcasting, allots Channel 246A at Moville, Iowa, as the community's first local aural transmission service. See 64 FR 29978, June 4, 1999. Channel 246A can be allotted to Moville in compliance with the Commission's minimum distance separation requirements with a site restriction of 5.2 kilometers (3.2 miles) east to avoid a short-spacing to the licensed site of Station KMXC(FM), Channel 247C1, Sioux Falls, Iowa. The coordinates for Channel 246A at Moville are 42-29-11 North Latitude and 96-00-36 West Longitude.

The Commission, at the request of Mountain West Broadcasting, allots Channel 225A at Rockford, Iowa, as the community's first local aural transmission service. See 64 FR 29978, June 4, 1999. Channel 225A can be allotted at Rockford in compliance with the Commission's minimum distance separation requirements with a site restriction of 2.3 kilometers (1.4 miles) southwest to avoid short-spacings to the licensed sites of Station KATF(FM), Channel 225C1, Dubuque, Iowa, and Station KFSI(FM), Channel 225A, Rochester, Minnesota. The coordinates for Channel 225A at Rockford are 43-01-55 North Latitude and 92-57-53 West Longitude.

The Commission, at the request of Iroquois County Broadcasting Company, allots Channel 240A at Watseka, Illinois, as the community's second local FM transmission service. See 64 FR 57838, October 27, 1999. Channel 240A can be allotted at Watseka in compliance with the Commission's minimum distance separation requirements with a site restriction of 5.4 kilometers (3.3 miles) northwest to avoid a short-spacing to the licensed site of Station WKKD-FM, Channel 240A, Aurora, Illinois. The coordinates for Channel 240A at Watseka are 40-48-00 North Latitude 87-47-15 West Longitude.

The Commission, at the request of McTronix, allots Channel 271C3 at Keosauqua, Iowa, as the community's first local aural transmission service. See 64 FR 57838, October 27, 1999. Channel 271C3 can be allotted at Keosauqua in compliance with the Commission's minimum distance separation requirements at city reference coordinates. The coordinates for Channel 271C3 at Keosauqua are 40-43-48 North Latitude and 91-57-48 West Longitude.

The Commission, at the request of La Nina Education Association, allots Channel 274A at Box Elder, South Dakota, as the community's first local aural transmission service. See 64 FR 57837, October 27, 1999. Channel 274A can be allotted at Box Elder in compliance with the Commission's minimum distance separation requirements at city reference coordinates. The coordinates for Channel 274A at Box Elder are 44-06-48 North Latitude and 103-04-12 West Longitude.

In December 1975, during the aftermath of the energy crisis created by the oil embargo of 1973-74, Congress enacted the Energy Policy and Conservation Act. The Act established an automotive fuel economy regulatory program by adding Title V, “Improving Automotive Efficiency,” to the Motor Vehicle Information and Cost Saving Act. Title V has been amended and recodified without substantive change as Chapter 329 of Title 49 of the United States Code. Chapter 329 provides for the issuance of average fuel economy standards for passenger automobiles and automobiles that are not passenger automobiles (light trucks).

Section 32902(a) of Chapter 329 states that the Secretary of Transportation shall prescribe by regulation corporate average fuel economy (CAFE) standards for light trucks for each model year. That section also states that “[e]ach standard shall be the maximum feasible average fuel economy level that the Secretary decides the manufacturers can achieve in that model year.” (The Secretary has delegated the authority to implement the automotive fuel economy program to the Administrator of NHTSA. 49 CFR 1.50(f).) Section 32902(f) provides that in determining the maximum feasible average fuel economy level, we shall consider four criteria: Technological feasibility, economic practicability, The effect of other motor vehicle standards of the Government on fuel economy, and The need of the United States to conserve energy. Using this authority, we have set light truck CAFE standards through MY 2001. See 49 CFR 533.5(a). The standard for MY 2001 is 20.7 mpg.

We began the process of establishing light truck CAFE standards for model years after MY 1997 by publishing an Advance Notice of Proposed Rulemaking (ANPRM) in the Federal Register . 59 FR 16324 (April 6, 1994). The ANPRM outlined the agency's intention to set standards for some or all of model years 1998 to 2006.

On November 15, 1995, the Department of Transportation and Related Agencies Appropriations Act for Fiscal Year 1996 was enacted. Pub. L. 104-50. Section 330 of that Act provides:

We then issued a notice of proposed rulemaking (NPRM) limited to MY 1998, which proposed to set the light truck CAFE standard for that year at 20.7 mpg, the same standard as had been set for MY 1997. 61 FR 145 (January 3, 1996). This 20.7 mpg standard was adopted by a final rule issued on March 29, 1996. 61 FR 14680 (April 3, 1996).

On September 30, 1996, the Department of Transportation and Related Agencies Appropriations Act for Fiscal Year 1997 was enacted. Pub. L. 104-205. Section 323 of that Act provides:

On March 31, 1997, we issued a final rule (62 FR 15859) establishing light truck fuel economy standards for the 1999 model year. This final rule was not preceded by an NPRM. The agency concluded that the restriction contained in Section 323 of the FY 1997 Appropriations Act prevented us from issuing any standards other than the standard set for the 1998 model year. Because we had no other course of action, we determined that issuing an NPRM was unnecessary and contrary to the public interest.

We followed that same procedure for following years and did not issue an NPRM prior to establishing the 2000, and 2001 light truck fuel economy standards. The agency concluded, as it had when setting the 1999 standard, that the restrictions contained in the appropriations acts prevented us from issuing any standards other than the standard set for the prior model year. We also determined that issuing an NPRM was unnecessary and contrary to the public interest because we had no other course of action.

On October 9, 1999, the Department of Transportation and Related Agencies Appropriations Act for Fiscal Year 2000 was enacted. Public Law 106-69. This law contained the appropriations provisions for the Department of Transportation for the 2000 fiscal year. Section 321 of that Act provides:

Because light truck CAFE standards must be set no later than eighteen months before the beginning of the model year in question, the deadline for us to set the MY 2002 standard is approximately April 1, 2000. As the agency cannot spend any funds in violation of the terms of Section 321, it cannot undertake any work in preparation of a standard for MY 2002 unless it is identical to the MY 2001 standard. Preparation of any fuel economy standard requires the agency to spend money to determine what the appropriate fuel economy level would be, to analyze the costs and benefits of that standard and to prepare documents and studies regarding the standard. Incurring these costs when the legislation dictates the fuel economy level would not be a productive use of resources. Accordingly, the agency is foregoing any analysis of what the appropriate fuel economy level for MY 2002 might be.

We note that the language contained in Section 321 of the FY 2000 Act is identical to that found in Section 330 of the FY 1996 Appropriations Act, Section 323 of the FY 1997 Appropriations Act, Section 322 of the FY 1998 Appropriations Act, and Section 322 of the FY 1999 Appropriations Act. The adoption of identical language in these acts leads us to conclude that Congress considered our prior view of this language to be correct: the limitation precludes NHTSA from setting a light truck standard that differs from one adopted in the previous year.

As explained above, Section 321 precludes NHTSA from preparing, proposing, or issuing any CAFE standard that is not identical to those previously established for MYs 1998, 1999 and 2000 and 2001. We are therefore establishing the MY 2002 light truck standard through the issuance of this final rule. In our view, the express directive in the FY 2000 Department of Transportation and Related Agencies Appropriations Act stops us from considering a new CAFE standard for the 2002 model year. As we cannot expend any funds to set the 2002 standard at any level other than the MY 2001 standard, issuing a notice of proposed rulemaking and providing an opportunity for notice and comment would be unnecessary and contrary to the public interest. Accordingly, this final rule sets the MY 2002 light truck CAFE standard at the MY 2001 level of 20.7 mpg.

These regulations are being published as a final rule. Accordingly, the fuel economy standards in Part 533 are fully in effect 30 days after the date of the document's publication. No further regulatory action by the agency is necessary to make these regulations effective.

These regulations have been published as a final rule without prior issuance of a notice of proposed rulemaking because Section 321 of the FY2000 Department of Transportation and Related Agencies Appropriations Act prevents us from issuing any fuel economy standard for the 2002 model year that differs from those in effect for the 2001 model year. Because of this, providing for prior notice and opportunity for comment would have been superfluous.

In the agency's view, vehicle manufacturers and other parties will not be harmed by the agency's decision not to issue an NPRM before issuing a final rule to establish the MY 2002 light truck fuel economy standard. The applicable fuel economy standards established in this final rule do not differ from those established for the prior model year. As these standards cannot be modified by the agency, use of a final rule without a prior NPRM has no impact on the positions of any interested party.

We have not prepared a final economic assessment because of the restrictions imposed by Section 321 of the FY 2000 DOT Appropriations Act. All past fuel economy rules, however, have had economic impacts in excess of $100 million per year. The rule was reviewed by the Office of Management and Budget under Executive Order 12866 and is considered significant under the Department's regulatory procedures. Although we have no discretion under the statute (as well as with respect to the costs it imposes), we are treating this rule as “economically significant” under Executive Order 12866 and “major” under 5 U.S.C. 801.

We have not conducted an evaluation of the impacts of this action under the National Environmental Policy Act. There is no requirement for such an evaluation where Congress has eliminated the agency's discretion by precluding any action other than the one announced in this document.

We have not conducted an evaluation of this action pursuant to the Regulatory Flexibility Act. The agency notes that this final rule, which was not preceded by a Notice of Proposed Rulemaking, is not a “rule” as defined by the Regulatory Flexibility Act and is, therefore, not subject to its provisions. As Congress has eliminated the agency's discretion by precluding any action other than the one taken in this document, we would not be able to take any action in the event such an analysis supported setting the light truck fuel economy at a different level. Past evaluations indicate, however, that few, if any, light truck manufacturers would have been classified as a “small business” under the Regulatory Flexibility Act.

The Regulatory Flexibility Act of 1980 (Public Law 96-354) requires each agency to evaluate the potential effects of a final rule on small businesses. Establishment of a fuel economy standard for light trucks affects motor vehicle manufacturers, few of which are small entities. The Small Business Administration (SBA) has set size standards for determining if a business within a specific industrial classification is a small business. The Standard Industrial Classification code used by the SBA for Motor Vehicles and Passenger Car Bodies (3711) defines a small manufacturer as one having 1,000 employees or fewer.

Very few single stage manufacturers of motor vehicles within the United States have 1,000 or fewer employees. Those that do are not likely to have sufficient resources to design, develop, produce and market a light truck. For this reason, we certify that this final rule would not have a significant economic impact on a substantial number of small entities.

We have analyzed this final rule in accordance with the principles and criteria contained in E.O. 13132, and have determined that this final rule does not have significant Federalism implications to warrant the preparation of a Federalism Assessment. As a historical matter, prior light truck standards have not had sufficient Federalism implications to warrant the preparation of a Federalism Assessment.

The Unfunded Mandates Reform Act of 1995 (Public Law 104-4) requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually.

The agency notes that Section 321 of the FY 2000 Department of Transportation and Related Agencies Appropriations Act precludes the agency from the expenditure of any funds to prepare, propose or promulgate any fuel economy standard that differs from those currently in effect. This directive forbids NHTSA from studying any alternative fuel economy standards other than those presently in force. The agency cannot consider any other alternative standards that may result in lower costs, lesser burdens, or more cost-effectiveness for state, local or tribal governments or the private sector. Furthermore, as we are precluded from expending any funds to prepare an alternative fuel economy standard, it cannot embark on any studies of such alternatives. We have therefore not prepared a written assessment of this final rule for the purposes of the Unfunded Mandates Act.

There are no information collection requirements in this final rule.

The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.

Executive Order 12866 and the President's memorandum of June 1, 1998, require each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:

If you have any responses to these questions, please forward them to Otto Matheke, Office of Chief Counsel, National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590.

Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under E.O. 12866, and (2) Concerns an environmental, health or safety risk that NHTSA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we 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 us.

This rulemaking does not have a disproportionate effect on children. The primary effect of this rulemaking is to conserve energy resources by setting fuel economy standards for light trucks.

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) requires NHTSA to evaluate and use existing voluntary consensus standards  1 in its regulatory activities unless doing so would be inconsistent with applicable law ( e.g., the statutory provisions regarding NHTSA's vehicle safety authority) or otherwise impractical. In meeting that requirement, we are required to consult with voluntary, private sector, consensus standards bodies. Examples of organizations generally regarded as voluntary consensus standards bodies include the American Society for Testing and Materials (ASTM), the Society of Automotive Engineers (SAE), and the American National Standards Institute (ANSI). If NHTSA does not use available and potentially applicable voluntary consensus standards, we are required by the Act to provide Congress, through OMB, an explanation of the reasons for not using such standards.

In establishing this fuel economy standard, the agency is simply establishing a goal for manufacturers to meet. Therefore, setting this standard does not involve the use of any voluntary standards.

In accordance with 49 U.S.C. 32902(j), we submitted this final rule to the Department of Energy for review. That Department did not make any comments that we have not responded to.

Based on the foregoing, we are establishing a combined average fuel economy standard for non-passenger automobiles (light trucks) for MY 2002 at 20.7 mpg.

The northern Idaho ground squirrel has the most restricted geographical range of any Spermophilus taxa, and one of the smallest ranges among North American mainland mammals (Gill and Yensen 1992). The first specimens, collected by L.E. Wyman in 1913, were described by A.H. Howell as Citellus townsendii brunneus, a subspecies of the Washington ground squirrel ( Spermophilus washingtoni ) (Howell 1938). In 1938, Howell subsequently classified the Idaho ground squirrel as a full species, Citellus brunneus. Hershkovitz (1949) demonstrated that Spermophilus is the correct name for this genus. Nadler (1966) first presented chromosome descriptions and confirmed the systematics of Spermophilus. Yensen (1991) described the southern Idaho ground squirrel ( Spermophilus brunneus endemicus ) as taxonomically distinct, based on morphology, pelage (fur), and apparent life-history differences including biogeographical evidence of separation.

Both the northern and southern Idaho ground squirrels are found only in western Idaho. Of the two subspecies, the northern Idaho ground squirrel is the rarest (Yensen 1991). A relatively small member of the genus Spermophilus, the mean length of northern Idaho ground squirrel males and females is 235 millimeters (mm) (9.25 inches (in.)) and 226 mm (8.9 in.), respectively. In comparison, the mean length of southern Idaho ground squirrel males is 241 mm (9.5 in.) and 235 mm (9.25 in.) for females (Yensen 1991). Pelage in northern Idaho ground squirrel differs from the southern Idaho ground squirrel in its mid-dorsal area, which consists of long, dark guard hairs and shorter, dark guard hairs with one paler-colored band on the shield (Yensen 1991). Most northern Idaho ground squirrels are found in areas with shallow reddish parent soils of basaltic origin, while the southern Idaho ground squirrel lives on lower elevation, paler colored soils formed by granitic sands and clays from the Boise Mountains (Yensen 1985, 1991). Marked differences in pelage coloration between the disjunct subspecies are related to soil color.

The baculum (penis bone) of northern Idaho ground squirrel is also generally smaller than the southern Idaho ground squirrel. A principal component analysis, which is a statistical analysis that proves similarities or differences, indicated a striking difference among bacula of the two subspecies (Yensen 1991). Genetic differentiation between the two subspecies was also confirmed using enzyme restriction analysis, blood allozyme analyses, and DNA protein sequencing, all of which analyze blood constituents to determine genetic differences (Gill and Yensen 1992; Sherman and Yensen 1994).

The northern Idaho ground squirrel emerges in late March or early April, remains active above ground until late July or early August (Yensen 1991), and spends the rest of the year in hibernation underground (Eric Yensen, Albertson College, pers. comm. 1999). Populations occur at elevations ranging from 1,155 to 1,580 meters (m) (3,800 to 5,200 feet (ft)) in Adams and Valley counties of western Idaho. In contrast, the southern Idaho ground squirrel occurs at elevations ranging from 669 to 973 m (2,200 to 3,200 ft) in the low rolling hills and valleys along the Payette River in Gem, Payette, and Washington counties of western Idaho (Yensen 1991). The southern subspecies emerges in late January or early February where snow melt begins 1 to 2 months earlier in spring, and ceases above-ground activity in late June or early July. The emergence of the northern Idaho ground squirrel in late March or early April begins with adult males, followed by adult females, then young of the year.

The northern Idaho ground squirrel normally becomes reproductively active within the first 2 weeks of emergence (Yensen 1991). Females that survive the first winter live, on average, nearly twice as long as males (3.2 years for females and 1.7 years for males). Individual females have lived for 8 years (Yensen 1991). Males normally die at a younger age due to behavior associated with reproductive activity. During the mating period, males move considerable distances in search of receptive females for mating and often fight with other males for copulations, thereby exposing themselves to predation by raptors including prairie falcon ( Falco mexicanus ), goshawk ( Accipiter gentilis ), and red-tailed hawk ( Buteo jamaicensis ). Significantly more males die or disappear during the 2-week mating period than during the rest of the 12- to 14-week period of above-ground activity (Sherman and Yensen 1994). Seasonal torpor (a state of sluggishness or inactivity) generally occurs in early to mid-July for males and females, and late July to early August for juveniles.

Unlike many ground squirrel species, the northern Idaho ground squirrel is not truly colonial. In this final rule, local areas where this subspecies occurs are referred to as “sites.” In 1985, the estimated population of northern Idaho ground squirrels at 18 known sites was approximately 5,000 squirrels (John Woflin, Service, in litt. 1985). Subsequent surveys were conducted on a sporadic basis from 1986 through 1993; more intensive efforts to estimate populations at 10 sites began in 1994 (Sherman and Yensen 1994). While new population sites were found during these surveys, several previously active sites became extirpated (Paul Sherman, Cornell University, pers. comm., 1997). In 1996, the total population had declined to fewer than 1,000 individuals found at 19 sites (Sherman and Gavin 1997). Only 1 of these sites contained more than 60 animals. In 1997 and 1998, additional locations with northern Idaho ground squirrels were found for a total of 36 historic and currently active sites. However the total population estimate still remains less than 1,000 individuals. Of the 36 sites, 14 occur on public lands (Federal and State). At 3 of these 14 sites, the subspecies has been extirpated, and at 1 site, the subspecies was extirpated but has been reintroduced. There are 22 sites on private lands, but at 7 of the sites, the subspecies has been extirpated. The number of squirrels in many of the active sites has been decreasing for over 10 years (Yensen 1980, 1985; J. Woflin, in litt . 1985; Sherman and Yensen 1994; Gavin et al. 1998).

Soil texture and depth can be a primary factor in determining species distribution for most Spermophilus (Brown and Harney 1993). The northern Idaho ground squirrel often digs burrows under logs, rocks, or other objects (Sherman and Yensen 1994). Dry vegetation sites with shallow soil horizons of less than 50 centimeters (19.6 in.) depth above basalt bedrock to develop burrow systems are preferred (Yensen et al. 1991). Burrows associated with shallow soils are called auxiliary burrows. Nesting burrows are found in well-drained soils greater than 1 m (3 ft) deep, in areas not covered with trees or used by Columbian ground squirrels ( Spermophilus columbianus ). Although Columbian ground squirrels overlap in distribution with the northern Idaho ground squirrel (Dyni and Yensen 1996), Columbian ground squirrels prefer moister areas with deeper soils. Sherman and Yensen (1994) report that the lack of extensive use of the same areas by the two subspecies is likely due to competition, rather than to each subspecies having different habitat requirements.

Nearly all of the meadow habitats utilized by northern Idaho ground squirrels are bordered by coniferous forests of Pinus ponderosa (ponderosa pine) and/or Pseudotsuga menziesii (Douglas-fir). However, this ground squirrel is not abundant in meadows that are surrounded by high densities of small young trees (Sherman and Yensen 1994).

The northern Idaho ground squirrel is granivorous (eats small seeds and grain) seasonally, similar to the Columbian ground squirrel (Dyni and Yensen 1996), and ingests large amounts of Poa species (bluegrass) and other grass seeds to store energy for the winter. The northern Idaho ground squirrel will consume the roots, bulbs, leaf stems, and flower heads of another 45 to 50 plant species that are major components of the diet during key periods of the spring and summer. The Columbian ground squirrel often inhabits areas with denser vegetation than the northern Idaho ground squirrel (Dyni and Yensen 1996). Such areas contain more abundant food resources than habitats occupied by northern Idaho ground squirrel (Belovsky and Schmitz 1994). The northern Idaho ground squirrel is found on lands administered by the U.S. Forest Service (Forest Service), Idaho State Department of Lands, and private property.

In a status review published January 6, 1989, we determined that the northern Idaho ground squirrel was a category 1 candidate (56 FR 562). Category 1 candidates were those taxa for which we had on file substantial information on biological vulnerability and threats to support preparation of listing proposals. Upon publication of the February 28, 1996, Notice of Review (61 FR 7596), we ceased using category designations and included the northern Idaho ground squirrel as a candidate species. 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 this animal was continued in the September 19, 1997, Notice of Review (62 FR 49398).

As a result of long-standing litigation with the Fund for Animals, a lawsuit settlement of January 21, 1997, directed us to make a decision ( i.e., prepare a proposed rule to list or remove from Federal candidacy) concerning the northern Idaho ground squirrel on or before April 1, 1998. A proposed rule to list the subspecies as threatened was published on March 23, 1998 (63 FR 13825).

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. 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.

In the proposed rule (63 FR 13825), we requested all interested parties to submit factual reports or information that might contribute to the development of a final rule for the northern Idaho ground squirrel. We contacted appropriate State agencies, county governments, Federal agencies, scientists, landowners, and other interested parties and requested them to comment. We opened a public comment period of 60 days on March 23, 1998, and closed it on May 22, 1998 (63 FR 13825). On March 13, 1998, we sent legal notices that invited public comment and announced a public hearing. The notice was published in The Idaho Statesman, Council Record, Adams County Leader, and the Central Idaho Star News on March 28, 1998. In anticipation of public interest, we conducted a public hearing on May 5, 1998, in Council, Idaho at the Council Elementary School. To consider new scientific information, we reopened the public comment period for 30 days on October 21, 1998 (63 FR 56134). A legal notice concerning the public comment period was published on October 27, 1998, in The Idaho Statesman. This comment period closed on November 20, 1998.

During the 3-month comment period, we received a total of seven comments. Of these comments, one supported listing, and two opposed the listing. Four comments were noncommittal. We reviewed all of the comments ( i.e., written and oral testimony) referenced above. The comments were grouped and are discussed under the following issue headings. In addition, we considered and incorporated, as appropriate, into the final rule, all biological and commercial information obtained through the public comment period.

In compliance with our July 1, 1994, Peer Review Policy (59 FR 34270), we solicited the expert opinion of an independent scientist regarding pertinent scientific or commercial data and issues relating to the supportive biological and ecological information for the northern Idaho ground squirrel. Information and suggestions provided by the reviewer were considered in developing this final rule, and incorporated where applicable.

Issue 1: One commenter believed there was a general lack of adequate information about the squirrels or sufficient searches for additional sites to publish a final rule. This responder was also concerned that key Forest Service staff and the primary research personnel involved in studying the northern Idaho ground squirrel intend to leave the project.

Our Response: We, the Forest Service, and the Idaho Department of Fish and Game have provided equipment, funding, and staff to support surveys for new populations and monitoring of existing populations since 1994. In 1998, additional surveys for the northern Idaho ground squirrel were conducted on lands owned by Boise Cascade Corporation (John Haufler, Boise Cascade Corporation, pers. comm., 1998). The surveys used vegetation habitat analysis, historical references, and anecdotal information from foresters, ranchers, engineers, and biologists. Staff at the Payette National Forest collated and field-validated the information and placed it on a geographical information systems (GIS) map. Analysis of GIS maps allows biologists to predict potential habitat for the species throughout its present range. A team of biologists spent several weeks in 1997 and 1998 surveying the potential sites for ground squirrel activity. The known historic and extant sites increased from 19 in 1996 to 36 in 1998. Of these 36 sites, 27 are currently occupied by northern Idaho ground squirrels. However, most of these sites have less than 20 individuals, and the total population numbers less than 1,000. Only by conducting annual monitoring of sites where animals were translocated from other sites and existing sites will we be able to document future population trends.

Two scientists from Cornell University, Ithaca, New York, who have overseen recent translocations, surveys, and annual monitoring notified us that they will not be able to continue this work in the future. However, one of these scientists agreed to assist with field surveys in 1999, and instructed a team of biologists from the Idaho Department of Fish and Game, Payette National Forest, and the Service for 2 weeks in survey and monitoring methods. This team will continue to coordinate annual surveys for new populations, collect data on population trends, and monitor habitat changes in coordination with the Payette National Forest staff.

Issue 2: One commenter requested that the northern Idaho ground squirrel not be listed because listing does not consider the impact of human welfare, local economy, public value, and private property rights.

Our Response: In accordance with 16 U.S.C. 1533(b)(1)(A) and 50 CFR 424.11 (b), listing decisions are made solely on the basis of the best scientific and commercial data available. In adding the word “solely” to the statutory criteria for listing a species, Congress specifically addressed this issue in the 1982 amendments to the Act (16 U.S.C. 1531 et seq. ). The legislative history of the 1982 amendments states: “The addition of the word solely is intended to remove from the process of the listing or delisting of species any factor not related to the biological status of the species’ H.R. Rep. No. 567, Part I, 97th Cong., 2d Sess. 20 (1982).

Issue 3: One commenter asserted that constitutional powers were being violated to list the northern Idaho ground squirrel under the Act since there is no substantial and documented interstate commerce involving this subspecies. This assertion is based on the belief that the intention of the U.S. Constitution is to regulate only those activities that substantially affect interstate commerce.

Our Response: The Federal Government has the authority under the Commerce Clause of the U.S. Constitution to protect this subspecies, for the reasons given in Judge Wald's opinion and Judge Henderson's concurring opinion in National Association of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), cert. denied, 1185 S. Ct. 2340 (1998). That case involved a challenge to application of the Act's prohibitions to protect the listed Delhi Sands flower-loving fly ( Rhaphiomidas terminatus abdominalis ). As with the northern Idaho ground squirrel, the Delhi Sands flower-loving fly is endemic to only one State. Judge Wald held that application of the Act's prohibition against taking of endangered species to this fly was a proper exercise of Commerce Clause power to regulate: (1) Use of channels of interstate commerce; and (2) activities substantially affecting interstate commerce, because it prevented loss of biodiversity and destructive interstate competition. Judge Henderson upheld protection of the fly because doing so prevents harm to the ecosystem upon which interstate commerce depends, and because doing so regulates commercial development that is part of interstate commerce.

The Federal Government also has the authority under the Property Clause of the Constitution to protect this subspecies. The northern Idaho ground squirrel occurs on the Payette National Forest, Idaho State lands, and private lands. If this subspecies were to become extinct, the diversity of vertebrate life in the Payette National Forest would be diminished. The courts have long recognized Federal authority under the Property Clause to protect Federal resources in such circumstances (See Kleppe v. New Mexico, 429 U.S. 873 (1976); United States v. Alford, 274 U.S. 264 (1927); Camfield v. United States, 167 U. S. 518 (1897); United States v. Lindsey, 595 F. 2d 5 (9th Cir. 1979).

Section 4 of the Act and regulations (50 CFR part 424) promulgated to implement the listing provisions of the Act set forth the procedures for adding species to the Federal lists. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1). These factors and their application to the northern Idaho ground squirrel are as follows:

The historic range of the northern Idaho ground squirrel is not well known. However, it is thought that this subspecies was relatively uncommon throughout its historic range (Forest Service 1997a). All remaining habitat sites for the northern Idaho ground squirrel are small in relation to those of other ground squirrels, ranging in size from 1.2 to 16 hectares (3 to 40 acres), and all are threatened by one or more of the following: forest encroachment into grassland meadows; conversion to agriculture; residential construction; development of recreational facilities such as golf courses; and road construction and maintenance.

The primary threat to the northern Idaho ground squirrel is meadow invasion by conifers (Sherman and Yensen 1994; E. Yensen, pers. comm. 1998, 1999). Fire suppression and the dense regrowth of conifers resulting from past logging activities have significantly reduced meadow habitats suitable for northern Idaho ground squirrels over the past 40 years. As the amount of suitable meadow habitat on public and private lands has been reduced, northern Idaho ground squirrel dispersal corridors have been reduced or eliminated, further constricting the subspecies into smaller isolated habitat areas (Truksa and Yensen 1990). The loss of dispersal corridors has caused some isolated populations to become extirpated in recent years (Sherman and Yensen 1994; Service 1996). Small populations at several remaining sites are likely to become extirpated as well (Sherman and Yensen 1994; Mangel and Tier 1994).

The fragmented distribution of the northern Idaho ground squirrel is a remnant of what may once have been a more continuous distribution from Round Valley, Idaho, in Valley County north to New Meadows, Idaho, and southwest to Council, Idaho, in Adams County. The forest structure in the area has changed markedly over the past century due to logging and fire suppression, resulting in denser, more even-aged younger stands of trees with thinner and less heterogeneous (not uniform) under-story plant communities (Burns and Zborowski 1996). Fire suppression allowed conifers to invade once suitable meadow habitats, thereby shrinking the size of forb/grass meadows or closing open grassy dispersal/migration corridors entirely to nearby meadow sites. These changes isolated the dry meadows with suitable shallow soils where the northern Idaho ground squirrel finds refuge from the Columbian ground squirrel, in addition to eliminating migration between northern Idaho ground squirrel sites. Remaining dry meadow habitats supporting northern Idaho ground squirrels are now being invaded by young conifer trees, reducing availability of the preferred forage and burrow habitat of this subspecies. Habitat dissection and reduced opportunities for dispersal among habitats prevents gene flow and results in considerable population differentiation (Sherman and Yensen 1994).

Agricultural conversion and rural housing developments near the communities of Round Valley, north to New Meadows, and south to Council, during the past 40 years have fragmented suitable habitats formerly occupied by the northern Idaho ground squirrel. Various types of developments continue to threaten remaining occupied sites in Adams and Valley counties. Occupied ground squirrel habitat near New Meadows was converted to a golf course and associated housing development (Yensen 1985), which resulted in the eradication of northern Idaho ground squirrels by poisoning because they were impacting the fairways and golf greens (E. Yensen, pers. comm. 1999).

A 51.5 kilometer (km) (32 mile (mi)) gravel road from Council to Cuprum, Idaho, is scheduled to be paved by the year 2001 (U.S. Department of Transportation 1998). Approximately 6.4 km (4 mi) of this project runs through historic and currently occupied habitat of the northern Idaho ground squirrel. The road improvement project will seasonally extend vehicle access to four occupied northern Idaho ground squirrel sites. These four sites will be subject to increased mortality risk from vehicular traffic, and possibly recreational shooting (Forest Service 1997a). The Federal Highways Administration consulted with us and the Forest Service in developing conservation measures as part of their biological assessment for the Council to Cuprum Road paving project (Forest Service 1997a). Conservation measures include actions to attract northern Idaho ground squirrels away from the paved highway to adjacent but suitable habitat to avoid passing vehicles. Funding for these conservation measures was approved by the U.S. Department of Transportation to monitor the measures before and after the road improvements have been made. Monitoring was initiated in 1998 and will continue through 2003. At this time, it is uncertain whether the proposed conservation measures will be successful in protecting remaining populations in the vicinity of the road improvement project.

Recreational shooting has contributed to the decline of northern Idaho ground squirrels at various sites (Yensen 1985, 1991; E. Yensen, pers. comm. 1999). Sites adjacent to housing developments, farms, and roads, in particular, are subject to a high rate of recreational shooting.

Four population sites have been documented as being subjected to recreational shooting (E. Yensen, pers. comm. 1998). One site is located next to a road on National Forest land. It was common to find .22 rifle casings on the road from people presumably shooting the ground squirrels. The subspecies has now been extirpated from this site as a result of shooting. Another site on private land that had both northern Idaho ground squirrels and Columbian ground squirrels was routinely used by recreational shooters, and, as a result, the population is now extinct there. Another site on private land at New Meadows was periodically used by recreational shooters until a golf course was put in at the site. The operators of the golf course then poisoned the remaining population of northern Idaho ground squirrels to eliminate them. The fourth site is partially located on private land and partially located on Forest Service land and also is subjected to shooting (E. Yensen, pers. comm. 1999).

Vandalism, either by shooting or poisoning, is a threat to most of the populations. Many private landowners consider ground squirrels to be a pest that requires elimination. In June 1998, Dr. Eric Yensen of Albertson College, who has done research on the subspecies, approached a private landowner for permission to check on a northern Idaho ground squirrel population occurring on his land. The landowner told Dr. Yensen he wanted to know where the population was so he could go out and poison them. Since the landowner was threatening to eliminate the population, Dr. Yensen declined to tell him exactly where the site was. Dr. Yensen was then refused permission to check on the site by the landowner. Other landowners have made similar threats against northern Idaho ground squirrel populations to Dr. Yensen (E. Yensen, pers. comm. 1999). Since most of the population sites contain less than 20 animals, and less than 1,000 animals overall, shooting and poisoning could have significant adverse impacts (E. Yensen, pers. comm. 1999).

Disease is not thought to be a major factor affecting the northern Idaho ground squirrel. The parasitic nematode, Pelodera strongyloides, infects the eyes of the northern Idaho ground squirrel (Sherman and Yensen 1994; Yensen et al. 1996). This eye worm is not currently known to be a cause of mortality in existing populations (Yensen et al. 1996). Plague ( Yersina pestis ) a contagious bacterial disease in rodents, has not yet been found in any northern Idaho ground squirrel populations (Yensen et al. 1996.). The disease, once established, could decimate these squirrels. Blood analysis to determine whether pandemic diseases are present have not been done on the northern Idaho ground squirrel.

The primary predators of the northern Idaho ground squirrel include badger ( Taxidea taxus ), goshawk ( Accipiter gentilis ), prairie falcon ( Falco mexicanus ), and occasionally red-tailed hawk ( Buteo jamaicensis ). Predators may threaten many of the smaller, more isolated populations of northern Idaho ground squirrel. Badger activity has been noted at several of these sites (Sherman and Gavin 1997). Badgers are efficient predators and could eliminate an entire population of 20 or so animals in just a few days. Male ground squirrels, due to their above-ground active behavior patterns, are particularly subject to increased predation risk during the mating period. Juveniles are also subject to a high degree of predation during their first year (Sherman and Yensen 1994). Also, domestic cat ( Felis catus ) predation has been documented at two sites because the sites are located near residential housing (E. Yensen, pers. comm. 1999).

The State of Idaho recognizes the northern Idaho ground squirrel as a “Species of Special Concern” (Idaho Department of Fish and Game 1994). Because of this status, the northern Idaho ground squirrel is, by State law, protected from taking (shooting, trapping, poisoning) or possession. To date, however, protection from recreational shooting has not been adequately enforced by the State, and the northern Idaho ground squirrel remains vulnerable to this type of activity (Yensen 1985).

Local land use ordinances and other regulations are inadequate to protect this subspecies. For example, in Adams County where 99 percent of northern Idaho ground squirrel population sites are found, land use regulations allow for single and multiple housing developments under a permit system. There is no consideration under the existing permit system for impacts that may result to northern Idaho ground squirrels from housing or recreation developments in or adjacent to their habitat. With no limitations on development of northern Idaho ground squirrel habitat, it is anticipated that human population growth and development in the foreseeable future will impact ground squirrel sites.

Other factors affecting conservation actions for this subspecies include land ownership patterns, prelisting activities, and conservation efforts on private and public lands. All active northern Idaho ground squirrel sites occur on private, State, and Payette National Forest lands. A conservation agreement (Agreement) was finalized in July 1996, between us and the Payette National Forest (Service 1996). The duration of the Agreement is 5 years. The Agreement identifies conservation and land management actions that will provide habitat favorable to the northern Idaho ground squirrel. These actions, some already in the implementation phase, include controlled burning of selected meadows to reduce over-story and to improve forage preferred by the northern Idaho ground squirrel, timber harvest in select areas to open meadows where active sites are found, and timber harvest to provide dispersal corridors for improved connectivity between active populations (Forest Service 1998). For example, 3.3 million board feet of timber is proposed for harvest in the Lick Creek drainage from 1998 to 2000 (Forest Service 1997b). The sale is designed to reconnect an active population with other nearby populations. It will also expand the size of 12 meadow habitats on Federal lands that are favorable to recolonization by the northern Idaho ground squirrel. Two units were completed in 1999, and the rest will be harvested in 2000. Although the Agreement does not currently remove or reduce threats to the degree where listing may be precluded, the conservation actions implemented will facilitate recovery.

A relocation plan, developed by scientists from Cornell University and Albertson College, was initiated in the spring of 1997, and continued in 1998 and 1999. A total of 76 squirrels were transplanted to 2 sites on lands managed by the Forest Service that had been treated through burning and timber harvest (Sherman and Gavin 1997; Gavin et al. 1998). One site had a small existing population of northern Idaho ground squirrels, and at the other site, the subspecies had been extirpated. Initial results indicate that some translocated females were lactating, and juveniles were observed at both sites, indicating successful reproduction (Sherman and Gavin 1997; Gavin et al. 1998). A report compiling the results of monitoring the transplant is expected in the spring of 2000. Whether long-term benefits to ground squirrel recovery result from these actions will be unknown for several years.

Habitat and resource competition with the Columbian ground squirrel is a factor affecting the survival of the northern Idaho ground squirrel. Competition from the Columbian ground squirrel could be an important factor in the decline of the northern Idaho ground squirrel (Dyni and Yensen 1996). The northern Idaho ground squirrel may have been forced into areas containing shallower soils due to competition from Columbian ground squirrels (Sherman and Yensen 1994). The Columbian ground squirrel is larger and prefers deeper areas with soils that provide better over-winter protection and higher nutrients. Where both subspecies occur, the northern Idaho ground squirrel tends to occupy the shallower soils but requires deeper soils less than 1 m (3.2 ft) for nests (Yensen et al. 1991). The Columbian ground squirrel is not restricted by soil depth; typically, their burrow systems are associated with degree of slope, well-drained soils, and number of native forbs (Weddell 1989).

Winter mortality may be a contributing factor for northern Idaho ground squirrel decline, especially when juvenile squirrels enter torpor without sufficient fat reserves and snow levels are below average (Paul Sherman, pers. comm., 1997). Soils tend to freeze to greater depths where snow levels are shallow. When this occurs, ground squirrels are unable to thermoregulate or maintain sufficient fat reserves. Although the relationship between ground squirrels and weather is complex, (Yensen et al. 1992) sites may have been adversely affected by drought and over winter mortality in the early 1990's. Winter mortality is of special concern since many remaining sites contain few individuals. High winter mortality combined with the loss of suitable vegetation conditions can result in the permanent loss of isolated populations.

As a result of the factors discussed above, and due to the small population sizes at remaining sites and the low total number of individuals, the northern Idaho ground squirrel may have little resilience to naturally occurring events (Gavin et al. 1993). Small populations are often highly vulnerable to natural climatic fluctuations as well as catastrophic natural events (Mangel and Tier 1994). Gavin et al. (1993) used a computer population viability simulation program (VORTEX), using natality (birth) and mortality (death) values recorded over 8 years from an intensively studied northern Idaho ground squirrel population (Sherman and Yensen 1994) to examine population viability. Variables in the model included no natural immigration. The population viability analysis used 50 individuals, a figure that was 30 individuals lower than the actual population size of 80 individuals (Sherman and Yensen 1994). The model calculated that all but 1 of 100 populations would become extinct in less than 20 years.

In developing this rule, we have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by the northern Idaho ground squirrel. Based on this evaluation, the preferred action is to list the northern Idaho ground squirrel as a threatened species. The subspecies has declined from approximately 5,000 animals in 1985 to fewer than 1,000 animals in 1998. Although additional occupied sites have been recently discovered, numerous extirpations have occurred. Most remaining populations consist of small numbers of individuals isolated from other populations. Remaining occupied sites on private land are not protected from threats to the species or its' habitat. Existing land use regulations are inadequate to protect the northern Idaho ground squirrel from habitat destruction resulting from development. Some ground squirrel habitat improvement projects have been initiated at two sites on Payette National Forest lands. While these efforts may be important to the long-term conservation of the northern Idaho ground squirrel, they are currently very limited in their applicability and the threat of meadow loss still continues. Benefits to the northern Idaho ground squirrel from current conservation actions may not be realized or quantifiable for years. While the northern Idaho ground squirrel is not in immediate danger of extinction because of ongoing conservation efforts, the subspecies could become endangered in the foreseeable future if remaining sites decline further. Not listing this taxon would be inconsistent with the intent of the Act.

Critical habitat is defined in section 3 of the Act as: (i) 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 (I) essential to the conservation of the species and (II) that may require special management considerations or protection and; (ii) specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. “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 northern Idaho ground squirrel because of a concern that publication of precise maps and descriptions of critical habitat in the Federal Register could increase the vulnerability of this species to incidents of shooting and other forms of human activity. We also indicated that designation of critical habitat was not prudent because we believed it would not provide any additional benefit beyond that provided through listing as endangered.

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 northern Idaho ground squirrel would be prudent.

Due to the small number of populations, the northern Idaho ground squirrel is vulnerable to shooting, colony destruction, or other disturbance. We remain concerned that these threats might be exacerbated by the publication of critical habitat maps and further dissemination of locational information. We have examined the evidence available for the northern Idaho ground squirrel, and have knowledge of two separate incidents where northern Idaho ground squirrel colonies were eliminated on private lands from poisoning and shooting. As stated in threat factor D, northern Idaho ground squirrels are, by Idaho State law, protected from taking (shooting, trapping, poisoning) or possession, but protection from recreational shooting has not been adequately enforced by the State, especially in those areas where recreational shooting of nearby Columbian ground squirrels is popular. However, we do not have any evidence that the publication of critical habitat maps would provide additional location information that was not already available and thus increase the threat to northern Idaho ground squirrels from shooting and poisoning. Consequently, consistent with applicable regulations (50 CFR 424.12(a)(1)(i)) and recent case law, at this time we cannot make a finding that the identification of critical habitat will increase the degree of threat to these species from taking or other human activity.

In the case of this species, some benefits may result from 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 this 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, in some instances section 7 consultation might be triggered only if critical habitat is designated. Examples could include unoccupied habitat or occupied habitat that may become unoccupied in the future. Designating critical habitat may also provide some educational or informational benefits. Therefore, we find that designation of critical habitat is prudent for the northern Idaho ground squirrel.

As explained in detail in our Listing Priority Guidance for FY 2000 (64 FR 57114), 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 northern Idaho ground squirrel 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 northern Idaho ground squirrel 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 this 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 northern Idaho ground squirrel 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, and private agencies, groups, and individuals. Without the elevated profile that Federal listing affords, little likelihood exists that any conservation activities would be undertaken. The Act provides for possible land acquisition and cooperation with the States and requires that recovery actions be carried out for all listed species. The protection required of Federal agencies and the prohibitions against taking and harm 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 proposed species 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 insure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a 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.

The Act requires the appropriate land management agencies to evaluate potential impacts to the species that may result from activities they authorize or permit. Consultation under section 7 of the Act is required for activities on Federal, State, county, or private lands that may impact the survival and recovery of the northern Idaho ground squirrel, if such activities are funded, authorized, carried out, or permitted by Federal agencies. Federal agencies that may be involved with this subspecies include the Forest Service, Federal Highway Administration, BLM, Office of Surface Mining, and Natural Resource Conservation Service. Section 7 requires these agencies to consider potential impacts to the northern Idaho ground squirrel prior to approval of any activity authorized or permitted by them.

Federal agency actions that may require consultation include removing, thinning, or altering vegetation; constructing of roads or camping sites in the vicinity of active and historical sites; recreational home developments; off-road vehicle use areas; gravel or sand mining activities; campground construction; mining permits and expansion; highway construction; and timber harvest.

Listing this subspecies as threatened provides for development of a recovery plan. Such a plan would identify both State and Federal efforts for conservation of the subspecies and establish a framework for agencies to coordinate activities and cooperate with each other in conservation efforts. The plan would set recovery priorities and describe site-specific management actions necessary to achieve conservation and survival of the subspecies. Additionally, pursuant to section 6 of the Act, we would be able to grant funds to affected States for management actions promoting the protection and recovery of this subspecies.

The Act and implementing regulations found at 50 CFR 17.31 describe general prohibitions and exceptions that apply to all threatened wildlife. These prohibitions, in part, make it illegal for any person subject to the jurisdiction of the United States to take (including harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt any such conduct), import or export, transport in interstate or foreign 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.

Permits may be issued to carry out otherwise prohibited activities involving threatened wildlife species under certain circumstances. Regulations governing permits for threatened species are at 50 CFR 17.32. 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. For threatened species, permits are also available for zoological exhibition, educational purposes, or special purposes consistent with the purposes of the Act.

As published in the Federal Register on July 1, 1994 (59 FR 34272), our policy is to identify, to the maximum extent practicable at the time when a species is proposed for listing, 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 the listing on proposed and ongoing activities within a species' range. We believe that, based upon the best available information, the following action will not likely result in a violation of section 9:

(1) Activities authorized, funded, or carried out by Federal agencies ( e.g., logging, flood and erosion control, mineral and housing development, off-road vehicle permitting or park development, recreational trail and campground development, road construction, prescribed burns, pest control activities, utility lines or pipeline construction) when such activity is conducted in accordance with any incidental take statement prepared by us in accordance with section 7 of the Act; and

(2) Clearing of a firebreak around one's personal residence.

Activities that we believe could potentially result in a violation of section 9 include but are not limited to:

(1) Activities that directly or indirectly result in the actual death or injury of the northern Idaho ground squirrel, or that modify the known habitat of the subspecies by significantly modifying essential behavior patterns ( e.g., intensive plowing and conversion to cropland, shooting, intentional poisoning, road and trail construction, water development and impoundment, mineral extraction or processing, off-road vehicle use, and unauthorized application of herbicides or pesticides);

(2) Activities within the northern Idaho ground squirrel hibernating period (mid July through early April) and near burrow areas that include road, pipeline, or utility construction, herbicide application, or other activities that would alter the burrow systems and food sources of the northern Idaho ground squirrel; and

(3) Activities authorized, funded, or carried out by Federal agencies ( e.g., logging, flood and erosion control, mineral and housing development, off-road vehicle permitting or park development, recreational trail and campground development, road construction, prescribed burns, pest control activities, utility lines or pipeline construction) when such activity is not conducted in accordance with any incidental take statement prepared by us in accordance with section 7 of the Act.

Questions regarding whether specific activities will constitute a violation of section 9 or requests to obtain approved guidelines for actions within northern Idaho ground squirrel habitat should be directed to the U.S. Fish and Wildlife Service, Snake River Basin Office, Boise, Idaho (see ADDRESSES section). Requests for copies of the regulations concerning listed animals and inquiries regarding prohibitions and permits may be addressed to the U.S. Fish and Wildlife Service, Endangered Species Permits, 911 N.E. 11th Avenue, Portland, Oregon 97232-4181 (telephone 503/231-2063; Facsimile 503/231-6243).

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

This rule does not contain any new collections of information other than those already approved under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , and assigned Office of Management and Budget clearance number 1018-0094. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. For additional information concerning permit and associated requirements for threatened species, see 50 CFR 17.32.

A complete list of all references cited herein, as well as others, is available upon request from the Snake River Basin Office (see ADDRESSES above).

The primary author of this proposed rule is Richard Howard, U.S. Fish and Wildlife Service, Snake River Basin Office (see ADDRESSES section).

NMFS published a proposed rule to list Johnson's seagrass as a threatened species on September 15, 1993 (58 FR 48326), and a proposed rule to designate critical habitat on August 4, 1994 (59 FR 39716). A public hearing on both the proposed listing and critical habitat designation was held in Vero Beach, Florida, on September 20, 1994. As a result of public input during the comment period, NMFS postponed further action on listing. In order to update the original status report (Kenworthy, 1993) and to include information from new field and laboratory research on species distribution, ecology, genetics and phylogeny, NMFS convened a workshop on the biology, distribution, and abundance of H . johnsonii . The results of this workshop were summarized in the proceedings (Kenworthy, 1997) submitted to NMFS on October 15, 1997. NMFS reopened the comment period for the proposed listing on April 20, 1998 (63 FR 19468). The final rule to list Johnson's seagrass as a threatened species was published by NMFS on September 14, 1998 (63 FR 49035).

Section 4(a)(3)(A) of the ESA requires that, to the maximum extent prudent and determinable, NMFS designate critical habitat concurrently with a determination that a species is endangered or threatened. At the time of final listing, critical habitat was not determinable because new information needed to perform the required analysis was not yet available. On February 23, 1999, NMFS established and convened a recovery team to prepare a recovery plan and develop recommendations for critical habitat for Johnson's seagrass. Based on these recommendations and the best available scientific data on the distribution, ecology, and genetics of this species, NMFS published a re-proposed rule on December 2, 1999 (64 FR 67536), to designate critical habitat for Johnson's seagrass. This final rule takes into consideration the new information and comments received in response to this re-proposed rule.

The final designation identifies those physical and biological features of the habitat that are essential to the conservation of the species and that may require special management consideration or protection. The economic and other impacts resulting from designating critical habitat, over and above those that result from listing the species, are expected to be minimal.

The use of the term “essential habitat” within this document refers to critical habitat as defined by the ESA and should not be confused with the requirement to describe and identify Essential Fish Habitat pursuant to the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq.

Critical habitat is defined in section 3(5)(A) of the ESA as “(i) the specific areas within the geographical area occupied by the species...on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species...upon a determination by the Secretary of Commerce (Secretary) that such areas are essential for the conservation of the species.” The term “conservation” as defined in section 3(3) of the ESA, means “...to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary.”

In designating critical habitat, NMFS must consider the requirements of the species, including: (1) space for individual and population growth, and for normal behavior; (2) food, water, air, light, minerals, or other nutritional or physiological requirements; (3) cover or shelter; (4) sites for breeding, reproduction, or rearing of offspring; and, generally, (5) habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of the species (50 CFR 424.12(b)).

In addition, NMFS must focus on and list the known physical and biological features (primary constituent elements) within the designated area(s) that are essential to the conservation of the species and that may require special management considerations or protection. These essential features may include, but are not limited to, food resources, water quality or quantity, and vegetation and sediment types and stability (50 CFR 424.12(b)).

The designation of critical habitat does not, in itself, restrict state or private activities within the area or mandate any specific management or recovery actions. A critical habitat designation contributes to species conservation primarily by identifying important areas and describing the features within those areas that are essential to the species, thus alerting public and private entities to the importance of the area. Under the ESA, the only regulatory impact of a critical habitat designation is through the provisions of ESA section 7. Section 7 applies only to actions with Federal involvement (e.g., authorized, funded, or conducted by a Federal agency) and does not affect exclusively state or private activities.

Under the ESA section 7 provisions, a designation of critical habitat would require Federal agencies to ensure that any action they authorize, fund, or carry out is not likely to destroy or adversely modify the designated critical habitat. Activities that destroy or adversely modify critical habitat are defined as those actions that “appreciably diminish the value of critical habitat for both the survival and recovery” of the species (50 CFR 402.02). Regardless of a critical habitat designation, Federal agencies must ensure that their actions are not likely to jeopardize the continued existence of the listed species. Activities that jeopardize a species are defined as those actions that “reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery”of the species (50 CFR 402.02). Using these definitions, in most cases activities that are likely to destroy or adversely modify critical habitat would also be likely to jeopardize the species. Therefore, in most cases the protection provided by a critical habitat designation generally duplicates the protection provided under the section 7 jeopardy provision. Critical habitat may provide additional benefits to a species in cases where areas outside of the species' current range have been designated. In these cases, Federal agencies are required to consult with NMFS under section 7 (50 CFR 402.14 (a)) when these designated areas may be affected by their actions. The effects of these actions on designated areas may not have been recognized but for the critical habitat designation.

A designation of critical habitat provides Federal agencies with a clearer indication as to when consultation under section 7 of the ESA is required, particularly in cases where the action would not result in direct mortality, injury, or harm to individuals of a listed species (e.g., an action occurring within the critical habitat area when or where Johnson's seagrass is not present). The critical habitat designation, in describing the essential features of the habitat, also helps determine which activities conducted outside the designated area are subject to ESA section 7 (i.e., activities that may affect essential features of the designated area). For example, disposal of waste material in water adjacent to a critical habitat area may affect an essential feature of the designated habitat (water quality) and would be subject to the provisions of section 7 of the ESA.

A critical habitat designation also assists Federal agencies in planning future actions because the designation establishes, in advance, those habitats that will be given special consideration in ESA section 7 consultations. This is particularly true in cases where there are alternative areas that would provide for the conservation of the species and the success of the action. With a designation of critical habitat, potential conflicts between Federal actions and endangered or threatened species can be identified and possibly avoided early in the agency's planning process.

Another indirect benefit of designating critical habitat is that it helps focus Federal, state and private conservation and management efforts in those areas. Recovery efforts may address special considerations needed in critical habitat areas, including conservation regulations that restrict private as well as Federal activities. No additional conservation regulations are associated with this critical habitat designation, however. Any future proposal would require a full, separate rulemaking. Other Federal, state and local laws or regulations, such as zoning or wetlands protection, may also provide special protection for critical habitat areas.

The economic, environmental, and other impacts of a designation must also be evaluated and considered. NMFS must identify present and future activities that may adversely modify designated critical habitat or be affected by a designation. An area may be excluded from a critical habitat designation if NMFS determines that the overall benefits of exclusion outweigh the benefits of designation, unless the exclusion will result in the extinction of the species (16 U.S.C. 1533(b)(2)).

The impacts considered in this analysis are only those incremental impacts that specifically result from designating critical habitat above the economic and other impacts attributable to listing the species or resulting from other authorities. These incremental impacts are expected to be minimal (see Benefits of Designating Critical Habitat section). In general, the designation of critical habitat highlights geographical areas of concern and reinforces the substantive protection resulting from the listing itself.

Section 9 of the ESA prohibits certain activities that directly or indirectly affect endangered species. These prohibitions apply to all persons and entities subject to U.S. jurisdiction. Section 9 prohibitions apply automatically to endangered species; however, this is not the case for threatened species. Section 4(d) of the ESA directs the Secretary to implement regulations “to provide for the conservation of [threatened] species” that may include extending any or all of the prohibitions of section 9(a)(2) to threatened species.

Section 9(a)(2)(E) of the ESA also prohibits violations of protective regulations for threatened species of plants implemented under section 4(d). NMFS may issue protective regulations pursuant to section 4(d) for Johnson's seagrass in a future rulemaking.

Impacts attributable to listing also include those resulting from the responsibility of all Federal agencies under section 7 of the ESA to ensure that their actions are not likely to jeopardize endangered or threatened species. An action could be likely to jeopardize the continued existence of a listed species through the destruction or adverse modification of its habitat, whether or not that habitat has been designated as critical.

NMFS has determined that the essential areas and features described here are at risk and may require special management consideration or protection. Special management may be required because of the following activities: (1) Vessel traffic and the resulting propeller dredging and anchor mooring; (2) dredging; (3) dock, marina, and bridge construction and shading from these structures; (4) water pollution; and (5) land use practices including shoreline development, agriculture, and aquaculture. Activities associated with recreational boat traffic account for the majority of human use associated with the critical habitat areas. The destruction of the benthic community due to boating activities, propeller dredging, anchor mooring, and dock and marina construction was observed at all sites during a study by NMFS from 1990 to 1992. These activities severely disrupt the benthic habitat, breaching root systems, severing rhizomes, and significantly reducing the viability of the seagrass community. Propeller dredging and anchor mooring in shallow areas are a major disturbance to even the most robust seagrasses. This destruction is expected to worsen with the predicted increase in boating activity. Trampling of seagrass beds, a secondary effect of recreational boating, also disturbs seagrass habitat. Populations of Johnson's seagrass inhabiting shallow water and water close to inlets, where vessel traffic is concentrated, will be most affected.

The constant sedimentation patterns in and around inlets require frequent maintenance dredging, which could either directly remove essential seagrass habitat or indirectly affect it by redistributing sediments, burying plants and destabilizing the bottom structure. Altering benthic topography or burying the plants may remove them from the photic zone.

Permitted dredging of channels, basins, and other in-and on-water construction projects cause loss of Johnson's seagrass and its habitat through direct removal of the plant, fragmentation of habitat, and shading. Docking facilities that, upon meeting certain provisions, are exempt from state permitting also contribute to loss of Johnson's seagrass through construction impacts and shading. Fixed add-ons to exempt docks (such as finger piers, floating docks, or boat lifts) have recently been documented as an additional source of seagrass loss due to shading (Smith and Mezich, 1999).

Decreased water transparency caused by suspended sediments, water color, and chlorophylls could have significant detrimental effects on the distribution and abundance of the deeper water populations of Johnson's seagrass. A distribution survey in Hobe and Jupiter Sounds indicates that the abundance of this seagrass diminishes in the more turbid interior portion of the lagoon where reduced light limits photosynthesis.

Other areas of concern include seagrass beds located in proximity to rivers and canal mouths where low salinity, highly colored water is discharged. Freshwater discharge into areas adjacent to seagrass beds may provoke physiological stress upon the plants by reducing the salinity levels. Additionally, colored waters released into these areas reduce the amount of sunlight available for photosynthesis by rapidly attenuating shorter wavelengths of Photosynthetically Active Radiation.

Also, continuing and increasing degradation of water quality due to increased land use and water management threatens the welfare of seagrass communities. Nutrient over-enrichment caused by inorganic and organic nitrogen and phosphorous loading via urban and agricultural land run-off stimulate increased algal growth that may smother Johnson's seagrass, shade rooted vegetation, and diminish the oxygen content of the water. Low oxygen conditions have a demonstrated negative impact on seagrasses and associated communities.

Special consideration and protection for these and other habitat features are evaluated in the ESA section 7 consultation process. Special management needs and the protection of these habitat features are being addressed in the development and implementation of the recovery plan.

A wide range of activities funded, authorized or carried out by Federal agencies may affect the essential habitat requirements of Johnson's seagrass. These include authorization by the COE for beach nourishment, dredging, and related activities including construction of docks and marinas; bridge construction projects funded by the Federal Highway Administration; actions by the U.S. Environmental Protection Agency and the COE to manage freshwater discharges into waterways; regulation of vessel traffic by the U.S. Coast Guard (USCG); management of national refuges and protected species by the U.S. Fish and Wildlife Service; management of vessel traffic (and other activities) by the U.S. Navy; approval of changes to Florida's coastal zone management plan by NOAA's National Ocean Service; and management of commercial fishing and protected species by NMFS.

This designation will identify specific habitat areas that have been determined to be essential for the conservation of Johnson's seagrass and that may be in need of special management considerations or protection. It will require Federal agencies to evaluate their activities with respect to the critical habitat of this species and to consult with NMFS pursuant to section 7 of the ESA before engaging in any action that may affect the critical habitat.

As discussed in the section on activities that may impact essential habitat and features, the Federal activities that may affect critical habitat are the same activities that may affect the species itself. For plants, this is particularly true when analyzing the impacts of designating critical habitat. For example, the activities that affect water quality, an essential feature of critical habitat, will also be considered in terms of how they affect the species itself.

Federal agencies will continue to engage in ESA section 7 consultations to determine if the actions they authorize, fund or carry out are likely to jeopardize the continued existence of Johnson's seagrass; however, with designation, they would also need to address explicitly impacts to the species' critical habitat. This is not expected to affect materially the scope of future consultations or result in greater economic impacts, since most impacts to Johnson's seagrass habitat will already be considered in ESA section 7 consultations.

The economic costs to be considered in a critical habitat designation are the incremental costs of designation above the economic impacts attributable to listing or attributable to authorities other than the ESA. NMFS has determined that there are few, if any, incremental net costs for areas within the species' current distribution, and no areas outside the current range are being designated as critical habitat.

The biology of Johnson's seagrass is discussed in the final rule to list the species as threatened (63 FR 49035, September 14, 1998) and includes information on the current status of the species, its life history characteristics and habitat requirements, as well as projects, activities and other factors affecting the species. The physical habitat that supports Johnson's seagrass includes both shallow intertidal and deeper subtidal zones. The species prospers and is able to colonize and maintain stable populations either in water that is clear and deep (2-5 m) or in water that is shallow and turbid. In tidal channels, it inhabits coarse sand substrates.

Based on published reports and discussions with seagrass experts, the distributional range of Johnson's seagrass is limited to the east coast of Florida from central Biscayne Bay (25°45′ N. lat.) to Sebastian Inlet (27°51′ N. lat.). There have been no reports of healthy populations of this species outside the presently known range.

Although the species occurs throughout the Indian River Lagoon and Lake Worth, the designated critical habitat areas encompass the largest known contiguous populations of Johnson's seagrass, those areas known to have persistent populations, those populations known to have persistent flowering, those populations found to have unique genetic variability, and/or populations that include the northern and southern limits of the species' range.

The species is distributed in patches within its range. The dimensions of patches range from a few square centimeters to approximately 327 square meters (sq.m). The survival of the species likely depends on maintaining its existing viable populations, especially the areas where the larger patches are found. The Sebastian Inlet population is believed to be the northern limit of its distribution and includes flowering patches that have a known persistence of at least 10 years. Ft. Pierce Inlet and Jupiter Inlet are also found to have persistent and flowering populations. The other designated critical habitat areas represent the core range of the species where Johnson's seagrass is found to be abundant compared to other parts of its range, exhibits unique genetic make-up, or comprises the southern limit of its range.

Spread of the species into new areas is limited by its reproductive potential. Johnson's seagrass possesses only female flowers; thus vegetative propagation, most likely through asexual branching, appears to be its only means of reproduction and dispersal. If an established community is disturbed, regrowth and reestablishment are extremely unlikely. If extirpated from an area, it is doubtful that the species would be capable of repopulation. This species' method of reproduction impedes the ability to increase distribution as establishment of new vegetation requires considerable stability in environmental conditions and protection from human-induced disturbances.

Based on the best available information, general physical and biological features of the critical habitat areas include adequate water quality, salinity levels, water transparency, and stable, unconsolidated sediments that are free from physical disturbance. The specific areas occupied by Johnson's seagrass are those with one or more of the following criteria: (1) Locations with populations that have persisted for 10 years; (2) locations with persistent flowering populations; (3) locations at the northern and southern range limits of the species; (4) locations with unique genetic diversity; and (5) locations with a documented high abundance of Johnson's seagrass compared to other areas in the species' range. Explanations for these criteria are:

1. Persistent populations . Surveys of H . johnsonii distribution and abundance in the Indian River Lagoon indicate that populations fluctuate dramatically. In some areas populations disappear and re-appear on both intra- and inter-annual time scales (Virnstein et al ., 1997). Some populations have disappeared and not returned. Since sexual reproduction and seed dispersal are unknown, this species may rely on vegetative fragmentation for recruitment and establishment of new populations. Recruitment from fragmentation and migration are random processes which do not guarantee the persistence of the species in any one location. Perennial populations which have persisted for 10 years exist in several locations, including Sebastian Inlet, Fort Pierce Inlet, Jupiter Inlet, and Hobe Sound. Environmental characteristics of these sites appear favorable to the species, while in other locations in the lagoon, populations have disappeared. Locations where populations have persisted have been designated as critical habitat.

2. Persistent flowering populations . The existence of male flowers or recruitment by seed have not been documented for H . johnsonii . These observations suggest that this species does not reproduce sexually, and if it does, it is a very rare event. Yet, large clones of mature female plants flower prolifically at several locations, including Sebastian Inlet, Fort Pierce Inlet, Jupiter Inlet, and Lake Worth Lagoon. The environmental conditions at these sites appear to be suitable for flowering, and if there are any males present, these would be likely habitats for successful reproduction. Locations where there are persistent flowering populations have received critical habitat designation.

3. Northern and southern ranges of the populations . The geographical limits of the distributional range of a species can indicate a reduction or expansion of the species' range. Greater adaptative stresses can occur at the limits of the species' range. If the range extension were shrinking, the edges should be protected to prevent further loss. In the alternative, the distribution limits may be a point where the populations are expanding and invading new environments. The unique phenotypic and genotypic characteristics of these populations could be an important reservoir for characteristics resistant to extinction and conducive to survival and growth. The northern and southern ranges of Johnson's seagrass are defined as Sebastian Inlet and central Biscayne Bay, respectively. Portions of these limits to the species' range have been designated as critical habitat for Johnson's seagrass.

4. Populations with unique genetic variability . The Boca Raton and Boynton Beach sites have populations which are distinguished by a higher index of genetic variation than any of the central and northern populations examined to date. These two sites possibly represent a genetically semi-isolated group which could be the reservoir of a large part of the overall genetic variation found in this species. Information is lacking on the geographic extent of this genetic variability. Locations with populations that have unique genetic variability have been designated as critical habitat.

5. Areas of abundance . The Lake Worth Lagoon and Palm Beach County seagrass populations represent an abundant core of Halophila species, including Johnson's seagrass. Previously a freshwater lake, Lake Worth was transformed into a lagoon beginning in 1877 when an ocean inlet was stabilized. With dredging of the ICW, shoreline development, and sewage disposal, the lagoon was permanently altered. Presently, there are about 2000 acres of seagrass in the lagoon covering 35 percent of the bottom. It is estimated that between 20 and 25 percent of the seagrass coverage is comprised of mixed assemblages of H . decipiens and H . johnsonii . This is proportionately more Halophila coverage than occurs elsewhere along the southeast coast of Florida. Presently, conditions within Lake Worth Lagoon and in Palm Beach County in general appear to be conducive to the survival of H . johnsonii . Three locations within Lake Worth Lagoon have been designated as critical habitat. The critical habitat area in Lake Worth Lagoon, near Bingham Island, consists of the largest recorded contiguous patch of Johnson's seagrass: a 30-acre meadow of Johnson's seagrass intermixed with sparse coverage of H . decipiens and Halodule wrightii (Smith and Mezich, 1991 and 1999).

NMFS is not including in the final designation any areas outside the species' currently known geographical range. NMFS has concluded that, at this time, proper management of the essential features of the areas around Sebastian and Ft. Pierce Inlet, Hobe Sound, Jupiter Inlet, Lake Worth, Boca Raton, and northern Biscayne Bay will be sufficient to provide for the survival and recovery of this species. NMFS may reconsider this evaluation and propose additional areas for critical habitat at any time. Johnson's seagrass occurs in numerous locations throughout its range in areas outside of those currently being designated as critical habitat. Information on genetic variability and persistence of Johnson's seagrass is currently lacking in these areas. Future research, however, involving genetic studies and comprehensive, long-term field surveys, could identify additional areas that are essential to the conservation of the species and require special management considerations, and would, therefore, warrant designation as critical habitat. Long-term surveys of the distribution of Johnson's seagrass may allow further refinement of the Biscayne Bay critical habitat area in the future. Additional areas that may be considered for critical habitat in future rulemaking include locations between Ft. Pierce Inlet and St. Lucie Inlet, west of the Jupiter Inlet, near the Boynton Beach Inlet and other areas of Lake Worth Lagoon. Also, if a male flower of Johnson's seagrass is identified in an area, this area should be designated as critical habitat.

The regulatory description of critical habitat for Johnson's seagrass can be found at the end of this Federal Register document.

Two public hearings were held on the proposed action: one in West Palm Beach, Florida, on December 16, 1999, and one in Miami, Florida, on January 31, 2000. Thirty-seven individuals provided oral testimony at the public hearings. Forty-nine comments were submitted in response to the proposed rule. Many comments were in support of designating critical habitat for Johnson's seagrass. However, the majority of comments were concerned about economic impacts from the designation. New information and comments received in response to the proposed rule are summarized here.

Many commenters believed that critical habitat designation would create a substantial economic burden that could delay projects and possibly prohibit certain activities, including recreational boating. The COE commented that critical habitat would place an unnecessary significance to these areas and an additional coordination and consultation burden that would be costly both in terms of the project delay and the cost directly associated with the consultation. Additional commenters believed that the designation would impose additional requirements or economic impacts upon small and/or private entities beyond those which may accrue from section 7 of the ESA.

Response : The designation of critical habitat highlights geographical areas of concern and reinforces the substantive protection resulting from the listing itself. Incremental costs are expected to be no greater than those which occurred at the time of listing (See Consideration of Economic and Other Factors).

ESA section 7 applies only to Federal actions and requires Federal agencies to ensure that any action they carry out, authorize, or fund is not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of habitat determined to be critical. The consultation requirements of section 7 are non-discretionary and are effective at the time of species' listing. Therefore, Federal agencies must consult with NMFS to ensure their actions do not jeopardize a listed species, regardless of whether critical habitat is designated.

Most of the effect on non-Federal interests will result from the no-jeopardy requirement of section 7 of the ESA, which is a function of listing a species, not designating its critical habitat. Whether or not critical habitat is designated, non-Federal interests must conduct their actions in a manner consistent with the requirements of the ESA. If the activity is funded, permitted, or authorized by a Federal agency, that agency must comply with the non-jeopardy mandate of section 7 of the ESA, which results from listing a species, not from designating its critical habitat. Once critical habitat is designated, the agency must avoid actions that destroy or adversely modify that critical habitat. However, pursuant to NMFS' ESA implementing regulations, in most cases any action that destroys or adversely modifies critical habitat is also likely to jeopardize the continued existence of the species (See the definitions in 50 CFR 402.02). Therefore, NMFS does not anticipate that the designation will result in significant additional requirements for non-Federal interests.

Notwithstanding its lack of economic impact, the designation of critical habitat remains important because it identifies habitat that is essential for the continued existence of a species and, therefore, indicates habitat that may require special management attention. This facilitates and enhances Federal agencies' ability to comply with section 7 of the ESA by ensuring that they are aware when their activities may affect listed species and habitats essential to support them. In addition to aiding Federal agencies in determining when consultations are required pursuant to section 7(a)(2) of the ESA, critical habitat can aid an agency in fulfilling its broader obligation under section 7(a)(1) to use its authority to carry out programs for the conservation of listed species.

On September 1, 1998, NMFS completed a conference opinion (CO) with the U.S. Army Corps of Engineers (COE) on maintenance dredging which concluded that normal maintenance dredging activities and routine operations on ports are not likely to jeopardize the continued existence of Johnson's seagrass or adversely modify proposed critical habitat. If requested by the COE, NMFS will review the CO, and, if no significant changes have occurred in the action as planned or in the information used during the conference, NMFS will confirm the CO as the biological opinion on the project and no further section 7 consultation will be necessary. NMFS expects that maintenance dredging will not be negatively impacted by this final critical habitat designation.

Various commenters voiced concern that dredging projects, including maintenance dredging, would be impaired and possibly prohibited in these areas. Concerns were that the designation would: (a) disrupt the COE permitting process and result in major permitting delays from the section 7 consultation process; (b) impair Palm Beach Harbor expansion projects and Lake Worth Lagoon clean-up efforts; (c) prevent or slow down and make more costly, a dredging project to remove contaminated sediments of the Miami River; (d) essentially stop the maintenance dredging of inlets, the ICW, and many private marina facilities; and (e) further delay and possibly impede FDOT bridge construction and other projects due to the section 7 process.

Response : NMFS expects that normal maintenance dredging activities and routine operations on ports will not be negatively impacted by this critical habitat designation. The COE has already conferred with NMFS on the proposed designation for maintenance dredging. Furthermore, there are fewer delays in permitting because the Federal agency knows in the planning process where designated critical habitat areas are for the species (See Benefits of Designating Critical Habitat). The critical habitat areas account for approximately 7 percent of the entire range of the species, and the designation assists Federal agencies (or those delegated to represent Federal lead agencies) in planning future actions because the designation establishes, in advance, those habitats that will be given special consideration in ESA section 7 consultations. Individual permits issued by the COE are being dealt with through the ESA section 7 process and in review by the COE's Nationwide Permit process. These projects will be examined programmatically by waterbody and/or project type.

As noted earlier, excluding an area from critical habitat does not exclude it from consultation under ESA section 7, based on expected impacts to the species. The species has been listed since September 1998, and Federal agencies have been required to confer on impacts to this species since it was proposed for listing in 1994. The designation would not impair or prohibit the timely and economical maintenance of the ICW or other federally-funded projects. The requirement for a Federal action agency to consult on actions which may affect a listed species occurs at the time the species is listed.

Many commenters believed that the outcome of critical habitat designation and the intention of NMFS is to stop or prohibit projects or activities. One commenter believed that NMFS seeks to “kill the public's recreational use of Biscayne Bay.”

Response : The designation of critical habitat does not, in and of itself, restrict human activities within an area or mandate any specific management or recovery action. The designation of critical habitat helps alert public and private entities to the area's importance, and under section 7 provisions, a critical habitat designation requires Federal agencies to ensure that any action they authorize, fund, or carry out is not likely to adversely modify or destroy critical habitat. The designation assists agencies in planning future actions. It is not the intention of NMFS to prohibit boating or other activities in the range of Johnson's seagrass.

The designation of critical habitat allows for early consultation and development of project alternatives. The Section “Need For Special Management Considerations” provides an overview of recognized impacts or threats to the species and its primary constituent elements (such as water quality and substrate stability) that may require special management considerations. Special consideration and protection for these and other habitat features are evaluated in the ESA section 7 consultation process. Special management needs and the protection of these habitat features are being addressed in the development and implementation of the recovery plan.

This is a subset of the concerns raised earlier. A number of commenters felt that the inclusion of the channel of the ICW was unnecessary for the conservation of the species and an economic burden to maintenance dredging of the waterway and that it would impair and probably prohibit the proper maintenance of the ICW. Similar comments were that the proposed designation would potentially decrease or possibly eliminate maintenance dredging of the ICW in Martin County, substantially impacting public safety and Martin County's economy, and that loss of ICW maintenance dredging may include total prohibition of boating activity within the critical habitat limits.

Response : After re-evaluation of the information, feedback from Recovery Team members with expertise in the distribution, abundance and habitat needs for the species, and public input, NMFS has determined that the (approximately 18.5 km) Federally marked navigation channel of the ICW occurring in the critical habitat areas will be excluded from critical habitat designation. NMFS has determined that the exclusion of the channel of the ICW is possible while still allowing for conservation of the species. The exclusion of the ICW channel occurs in the following critical habitat areas: (1) An interior portion of the Indian River Lagoon, north of the St. Lucie Inlet; (2) Hobe Sound; (3) the site in central Lake Worth Lagoon near Bingham Island; (4) a site in Lake Worth Lagoon, Boynton Beach; (5) a site in Lake Wyman, Boca Raton; and (6) a portion of Biscayne Bay Aquatic Preserve.

As stated earlier, the COE requested formal conference with NMFS when the species was proposed for listing in order to address and plan for the maintenance dredging projects. The NMFS' CO, issued September 1, 1998, concluded that the maintenance dredging of the ICW and ports in the range of Johnson's seagrass is not likely to jeopardize the continued existence of the species, and is not likely to destroy or adversely modify its proposed critical habitat. Johnson's seagrass is known to occur in parts of the ICW, but the exclusion of the ICW channel in the designated area will not affect NMFS' ability to review and prohibit adverse impacts to the species. The CO contains pre-dredging survey guidelines which provide that the number and severity of impacts to the species be tracked over time in conjunction with other impacts affecting the species in its range. New dredging or expansion projects will be reviewed separately under section 7.

Some commenters requested exclusion of other project types or areas besides that of the ICW channel, including: (a) the ICW right-of-way in addition to the channel; (b) all Florida Department of Transportation right-of-way and Submerged Land Easements which encompass existing bridges; (c) current docks, canals, and areas requiring dredging and boat use; (d) public boat ramps and existing basins; (e) any access channels and public and private maintenance of existing channels and piers and docking facilities; (f) public navigation channels; (g) areas adjacent to the Town of Jupiter; (h) Sealine Marina Yachting Center basin; (i) clean-up dredging of the Miami River. One commenter recommended exclusion of: (1) a 500-ft. (152.4 m) buffer adjacent to all privately-owned uplands, (2) the ICW and its adjacent right-of-way, (3) all areas within the preempted area of State submerged land leases, easements, consents of use or other State proprietary authorizations, (4) all marina facilities in existence at the time of listing, and (5) all existing access channels.

Response : The ICW channel has been excluded from critical habitat since it involves ongoing maintenance of a disturbed area. The CO developed for these ICW and ports maintenance projects analyzed the impacts of these activities on Johnson's seagrass. The CO did not consider new ICW dredging or expansion projects involving deepening or widening of the right-of-way. Because of the additional adverse impacts these projects will have on the species and habitat, above those considered in the CO, these projects will be considered separately in the ESA section 7 process. With regard to other areas, the critical habitat designation may be revised in the future as data become available. Critical habitat designation should have no effect on currently existing structures such as docks, marinas, and basins in designated critical habitat unless Federal authorization is required. NMFS would review, at that time, any proposed changes to those structures or facilities. In Biscayne Bay, the Miami River, the Little River, and the Oleta River are excluded from Johnson's seagrass critical habitat beyond its mouth. Any proposed dredging projects of this river that are authorized, funded, or carried out by a Federal agency may be reviewed under the section 7 process for impacts to listed species under NMFS purview.

One commenter, representing a private party holding the lease to submerged lands included in critical habitat designation, questioned how this party would be compensated for loss of this land.

Response : The land designated as critical habitat is not a taking of private property. A critical habitat designation does not impose any additional burdens on private property rights than those imposed by the species listing. A private landowner continues to be free to use his land as he sees fit, using care that his land management does not violate any ESA 4(d) regulations. The critical habitat designation simply clarifies the areas within which one's activity may impact Johnson's seagrass. The designation may affect such property if there is a Federal action that triggers the section 7 process.

There were numerous comments on the size of Biscayne Bay compared to the other areas proposed for designation in the north and central part of its range. Some commenters supported the designation. Comments opposed to the size of the designation included: (a) the area should not be so big because it is highly industrialized, with heavy commerce and recreational boating and development; (b) the area is too large as most of it is already dredged and seawalled; (c) the size of the area is not scientifically supported and is overreaching; and (d) the designation will stall and frustrate the orderly expansion of facilities to support recreation in the Bay. Those in support of the designation believed it to be beneficial to the species where the risk of development is great. One commenter suggested a more focused approach in Biscayne Bay Aquatic Preserve.

Response : NMFS believes that this designation, based upon criteria for Johnson's seagrass critical habitat, is currently appropriate and necessary for the survival of Johnson's seagrass in its southern range. Based on comments received, this critical habitat area was re-evaluated by NMFS and by members of the Recovery Team.

The species, by nature, is patchily distributed. Johnson's seagrass occurs in approximately a 2-percent abundance in comparison to all species of seagrass throughout its range. In Biscayne Bay, a highly-impacted system, Johnson's seagrass is not known to occur in the same abundance or to be as widely distributed as in areas of its northern and middle range. Larger seagrasses, predominantly Thalassia , begin to out-compete Johnson's seagrass in this area. Eiseman and McMillan (1980) documented Johnson's seagrass in the vicinity of Virginia Key, Key Biscayne (Lat 25°45′); this location is considered to be the southern limit of the species range. There have been no reports of this species further south of the currently known southern distribution.

The presence of Johnson's seagrass in northern Biscayne Bay (north of Virginia Key) is well documented. In addition to localized surveys, the presence of Johnson's seagrass has been documented by various field experiences and observations of the area by Federal, state and county entities. Johnson's seagrass has been documented in various COE and USCG permit applications reviewed by NMFS. The Dade County Department of Environmental Resources has mapped a general seagrass coverage of Biscayne Bay, and a wide-range, long-term monitoring program for Johnson's seagrass is recommended.

Development, man-made impacts, and human use of the submerged lands in this waterbody are heavy and there is a management need to protect critical habitat for Johnson's seagrass based on this pressure. Protection of the northern and southern ranges of the species is identified as a criteria essential to the protection of Johnson's seagrass. Genetic diversity in its southern range may be greater than in the north or central parts of the range and unique from either the north or central range. The unique phenotypic and genotypic characteristics of these populations could be an important reservoir for characteristics resistant to extinction and conducive to survival and growth.

The State of Florida designated Biscayne Bay as an aquatic preserve, recognizing it as “an exceptional area of submerged bay lands and natural waterways tidally connected to the bay” (Florida Administrative Code 18-18). Concurrently, the section of Biscayne Bay Aquatic Preserve designated as critical habitat for Johnson's seagrass is considered by NMFS to be essential to the survival of the species. Final critical habitat designation may be revised as new data become available. New information, possibly through a long-term, wide-range monitoring program and increased ground-truthing of seagrass species in the Bay, could identify the distribution, abundance, and persistence of Johnson's seagrass. This new information could allow NMFS, in the future, to further refine areas in the southern end of the species' range. The species may not occur in 100 percent of the area. However, protection of Johnson's seagrass throughout this area is considered by NMFS to be essential to the conservation and survival of the species.

Various parties recommended the increase in the size and/or the addition of sites in the north and central parts of the range. Commenters believed that the modest acreage proposed, representing only about 7 percent of the species' range, does not fully represent the area occupied by the respective beds over time. The following areas were recommended for expansion: (a) Sebastian Inlet, (b) Fort Pierce Inlet, (c) Jupiter Inlet, (d) Jupiter Sound, (e) Lake Worth/Bingham Island, and (f) Lake Wyman.

The following new areas were recommended to be added as new critical habitat: (a) The entire area of Indian River Lagoon, from Ft. Pierce Inlet to St. Lucie Inlet; (b) Herman's Bay, St. Lucie County; (c) three sites in the Loxahatchee River/Estuary; (d) a site south of Lake Worth Inlet and Peanut Island; (e) a site at Royal Park Bridge, Palm Beach County; (f) two sites south of Boynton Inlet; and (g) site(s) in Broward County. A few commenters believed that the 10-year persistence criterion eliminates significant populations from critical habitat consideration, and that it is too strict. They recommended reduction in the time frame to 3 years to identify a persistent population of Johnson's seagrass.

Response : Five criteria for designating Johnson's seagrass critical habitat were developed by the members of the recovery team (See Critical Habitat for Johnson's seagrass). The size of the areas in the north and central part of the species range were based on the criteria for persistent and flowering populations and indicate the shoals of persistent beds. These areas have been studied for 10 years and have shown the ability to persist where other areas in the general vicinity have not. Johnson's seagrass is patchily distributed, has rapid growth and turnover, and migrates across the sea floor. Recruitment from fragmentation and migration are random processes which do not guarantee the persistence of the species in any one location. The areas designated in Indian River Lagoon, Hobe Sound, Jupiter Inlet, and Lake Worth Lagoon indicate populations that have persisted and flowered for 10 years despite these species characteristics. Environmental characteristics of these sites appear favorable to the species, while in other locations in the lagoon, populations have disappeared. Based upon the Recovery Team recommendations, NMFS believes that 10-year persistence is a valid criterion for designating critical habitat for Johnson's seagrass. Refinement of these areas was possible due to the information from permanent transects, genetic information, State of Florida marina siting and dock shading studies, and Palm Beach County Lake Worth Lagoon surveys.

The Lake Wyman site is a critical area for the existing genetic variability of Johnson's seagrass found in the central part of its range. With a re-examination and further interpretation from Florida Fish and Wildlife Conservation Commission's (FFWCC) marina survey and dock shading data, NMFS concurs that the proposed designation of 3.3 acres excluded the contiguous and dense beds of Johnson's seagrass southward. As a result, NMFS has expanded the southern boundary of this area approximately 1500 ft. (457.2 m) in order to more adequately protect this genetic variability in the central range, particularly from stochastic events.

Some of the recommendations to add new areas were based on reducing the criterion for persistence from 10 years to 3 years. However, NMFS believes, based on Recovery Team recommendations, that the 10-year time period most accurately identifies persistent areas of Johnson's seagrass. The Loxahatchee Estuary, just west of the Jupiter Inlet, holds a large monotypic population of Johnson's seagrass. However, historical survey data on the persistence of Johnson's seagrass in this area do not currently exist. Future data on the ability of Johnson's seagrass to persist in this euryhaline (wide range of salinity) environment, with its extreme changes in salinity, may indicate this to be a unique site for Johnson's seagrass. NMFS may, therefore, consider this site as critical habitat in future rulemaking based on its unique environmental characteristics.

Comments were made that there should be more than two areas proposed for critical habitat designation in Lake Worth Lagoon, which is an essential area of abundance for Halophila species. Further analysis from FFWCC, and a re-evaluation of the data provided by Palm Beach County and State of Florida marina siting surveys and dock studies, support the addition of a critical habitat site in Lake Worth Lagoon, south of Lake Worth Inlet and Peanut Island. The population of Johnson's seagrass in this area is well-documented as an abundant, persistent (at least 10 years) and flowering population of mixed Halophila and monotypic Johnson's seagrass. Any additions or revisions that may be made in the future to this final rule will go through another proposed and final rule process with public input.

Many individuals expressed support for the designation and voiced the need to protect all seagrasses, emphasizing the ecological benefits (such as a nursery/spawning ground) of seagrass conservation, not only for a single species, but for the ecosystem. Many commenters expressed concerns about massive releases of freshwater by the COE from Lake Okechobee and threats to the entire system from development.

Response : NMFS supports efforts and plans to conserve and manage ecosystems and appreciates the role that the ESA can take in protecting those species most threatened or endangered in these systems. NMFS' authority is under the ESA in protecting listed species, and NMFS believes that the ESA section 7 consultation process benefits the protection of other seagrasses and the diversity of the shallow estuarine ecosystem. NMFS appreciates the opportunity to participate in the Lake Worth Lagoon project, Indian River Lagoon Management Plan, Biscayne Bay initiative and the South Florida Ecosystem Restoration Plan.

A few commenters suggested that critical habitat was not determinable and should not be designated at this time. Reasons given included: (a) a lack of information on how the species propagates; (b) the need for further study on habitat preferences; and (c) a lack of essential information determining the physical and biological features that are essential to the conservation of a given species.

Response : These factors were considered in the decision to list the species. Essential information does exist for Johnson's seagrass, as provided at the time of listing. The range of the species has been delineated and there is a clear understanding of how the species grows and propagates (Kenworthy, 1999, 1997). Since its listing, further information in terms of genetic variability, patch dynamics, persistence and abundance, and transplanting capabilities has been found for Johnson's seagrass. Further studies will be valuable in answering questions about the species' patch and population dynamics, dispersion, and transplanting capabilities. However, NMFS believes that sufficient and conclusive information exists at this time for the designation of critical habitat for Johnson's seagrass.

Some commenters interpreted the ESA definition of “critical habitat” (section 3 (5)(i); “The specific areas within the geographic area occupied by the species”) as meaning that critical habitat can only be designated where the species physically occurs.

Response : A species does not have to occupy 100 percent of a critical habitat area. This would be similar to drawing a “box” around a plant or animal but not providing it with its requirements for space, population growth, normal behavior, food, or other physiological, nutritional, and reproductive requirements (See Definition of Critical Habitat). NMFS must focus on the primary constituent elements within the designated areas that are essential to the conservation of the species and that may require special management considerations or protection, and not only the space taken up by the species. This final rule designates “critical habitat”, as defined by the ESA, for Johnson's seagrass.

Some commenters questioned the current regulations for the protection of seagrass habitat and whether these were not enough to assure the protection of Johnson's seagrass.

Response : This concern was also covered at the time the species was listed. Despite existing Federal and Florida State laws aimed to conserve and protect seagrass habitat, there is a continued and well documented loss of seagrass habitat in the United States. NMFS acknowledges that many portions of the proposed critical habitat for Johnson's seagrass overlap with other special areas, such as the Indian River Lagoon and Biscayne Bay Aquatic Preserves. The critical habitat designation will underscore and strengthen the protective goals of these areas.

Based on comments and new information received on the proposed rule, NMFS is modifying the proposed critical habitat designation for Johnson's seagrass as follows:

(1) Exclusion of Federal navigation channels of the ICW that occur in critical habitat areas. This includes the following areas: (a) An interior portion of the Indian River Lagoon, north of the St. Lucie Inlet; (b) Hobe Sound; (c) the site in central Lake Worth Lagoon near Bingham Island; (d) a site in Lake Worth Lagoon, Boynton Beach; (e) a site in Lake Wyman, Boca Raton; and the portion of Biscayne Bay designated as critical habitat.

(2) Extension of Lake Wyman critical habitat area by 1500 ft. (457.2 m) south from the proposed area.

(3) Exclusion of the Miami River and Little River beyond their mouths at Biscayne Bay.

Maps are provided for reference purposes to guide Federal agencies and other interested parties in locating the general boundaries of the critical habitat. They do not constitute the definition of the boundaries of critical habitat. Persons must refer to the regulations at 50 CFR 226.213 for the actual boundaries of the designated critical habitat. Figures 1 through 9 illustrate the ten areas being designated as critical habitat for Johnson's seagrass. These maps do not illustrate the exclusion of the ICW channel.

The complete citations for the references used in this document are available upon request (see FOR FURTHER INFORMATION CONTACT ).

NMFS has determined that Environmental Assessments or an Environmental Impact Statement, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared for this critical habitat designation. See Douglas County v. Babbitt , 48 F.3d 1495 (9th Cir. 1995), cert. denied, 116 S.Ct. 698 (1996).

NMFS is designating ten areas in the range of Johnson's seagrass as critical habitat. This designation will not impose any additional requirements or economic effects upon small entities beyond those which may accrue from section 7 of the ESA. Section 7 requires Federal agencies to ensure that any action they carry out, authorize, or fund is not likely to jeopardize the continued existence of any listed species or to result in the destruction or adverse modification of critical habitat (ESA section 7(a)(2)). The consultation requirements of section 7 are nondiscretionary and are effective at the time of species' listing. Therefore, Federal agencies must consult with NMFS to ensure that their actions do not jeopardize a listed species, regardless of whether critical habitat is designated.

In the future, should NMFS determine that designation of additional habitat areas in the species' range and/or outside the species' current range is necessary for conservation and recovery, NMFS will analyze the incremental costs of the action and assess its potential impacts on small entities, as required by the Regulatory Flexibility Act.

Accordingly, the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that the critical habitat designation would not have a significant economic impact on a substantial number of small entities, as described in the Regulatory Flexibility Act.

The Assistant Administrator for Fisheries, NOAA, has determined that the designation is consistent to the maximum extent practicable with the approved Coastal Zone Management Program of the State of Florida. This determination has been submitted for review by the responsible State agency under section 307 of the Coastal Zone Management Act.

The Assistant Administrator for Fisheries, NOAA, has determined this rule is not significant for purposes of E.O. 12866.

This final rule does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act.

In accordance with E.O. 13132, NMFS has prepared the following federalism summary impact statement. When NMFS issued a proposed rule to designate critical habitat for Johnson's seagrass in 1994, NMFS began consulting with the State of Florida. While the state expressed support for protection of Johnson's seagrass, it also expressed concern over the possible economic impacts of a critical habitat designation. NMFS understands the concerns of the state regarding timely maintenance of state and Federal navigation channels, ports, and inlets, and NMFS' goal is to protect the species with minimal effects to these activities. Concerns regarding possible economic impacts of a critical habitat designation are addressed in the preamble to this final rule. In addition, NMFS has completed a conference opinion with the COE on the effects of maintenance dredging on Johnson's seagrass and its critical habitat. NMFS expects that maintenance dredging will not be negatively impacted by this final critical habitat designation.

A final rule was published in the Federal Register on March 20, 2000 (65 FR 14909), to publish annual management measures on behalf of the International Pacific Halibut Commission and to announce approval of modifications to the Catch Sharing Plan and implementing regulations for Area 2A.

An editorial comment was unintentionally added to the preamble of the final rule, which must be removed.

In the final rule Pacific Halibut Fisheries; Catch Sharing Plans, published in 65 FR 14909, March 20, 2000, FR Doc 00-6837, on page 14912, in the second column, in paragraph (2), the last two sentences are removed.

The following changes to current management measures were recommended by the Pacific Fishery Management Council (Council), in consultation with the States of Washington, Oregon, and California, at its March 6-10, 2000, meeting in Sacramento, CA. Pacific coast groundfish landings will be monitored throughout the year, and further adjustments to the trip limits will be made as necessary to stay within the OYs and allocations announced in the annual specifications and management measures for the groundfish fishery, published in the Federal Register at 65 FR 221 (January 4, 2000).

At its November 1999 meeting, the Council recommended the following groundfish limits for a vessel using shrimp trawl gear (an open access exempted trawl gear): 500 lb (227 kg) per day (multiplied by the number of days in the fishing trip), not to exceed 2,000 lb (907 kg) per trip. The Council also announced its intent to review and recommend at its March 2000 meeting any additional sublimits that should apply for the pink shrimp fishery which starts April 1, 2000. The groundfish trip limits are intended to provide for a reasonable level of incidental harvest in the pink shrimp fishery: Trip limits that are too high could encourage targeted fishing for groundfish and trip limits that are too low could result in discarding groundfish that exceed the trip limits. At its March 2000 meeting, the Council recommended maintaining the overall groundfish limits announced in January for the pink shrimp trawl fishery, and added the following sublimits that count toward the overall groundfish limits: for canary rockfish—100 lb (45 kg) in April and 300 lb (136 kg) per month May through October, (the same as for limited entry vessels using small-footrope trawl gear); for lingcod—no retention in April, and 400 lb (181 kg) per month in May through October, the same as for limited entry vessels using small-footrope trawl gear, and with a minimum size limit of 24 inches (61 cm) north of 40°10′ N. lat. and 26 inches (66 cm) south of 40°1010′ N. lat., the same size limits as for open access nontrawl gear; for sablefish, 2,000 lb (907 kg) per month, which is smaller than the open access nontrawl or limited entry trawl cumulative limits for sablefish. These limits are based on landings data for the shrimp fishery, and as consistent as practicable with other limits for the groundfish fishery.

The trip limits are complicated by the fact that many vessels that fish for pink shrimp also participate in other groundfish fisheries. Provisions are added in this document to clarify which limits apply if a vessel participates in both pink shrimp and other groundfish fisheries during the same trip limit period. If a vessel that takes and retains pink shrimp also takes and retains groundfish in either the limited entry or another open access fishery during the same applicable cumulative trip limit period, the vessel may retain the larger of the two limits, but only if the limit(s) for each gear or fishery are not exceeded when operating in that fishery or with that gear. The limits are not additive; the vessel may not retain a separate trip limit for each fishery. Minor housekeeping revisions also are made to clarify which trip limits apply to the other exempted trawl gears.

The Council remains concerned about the amount of canary rockfish, an overfished species, that may be taken incidentally in the pink shrimp fishery and will reconsider this issue at its April meeting.

For the reasons stated here, NMFS concurs with the Council's recommendations and announces the following changes to the 2000 annual management measures (65 FR 221, January 4, 2000, as modified). The annual management measures are modified as follows:

In Section IV, paragraphs IV.A.(11), C.(1), the title of Table 5, C.(2), C.(2)(a), and C.(3) are revised to read as follows:

This action is authorized by Magnuson-Stevens Fishery Conservation and Management Act provisions at 50 CFR 600.745 which state that EFPs may be used to authorize fishing activities that would otherwise be prohibited.

NMFS received an application requesting renewal of these EFPs from the States of Washington, Oregon, and California at the March 6-10, 2000, Pacific Fishery Management Council (Council) meeting in Sacramento California. An opportunity for public testimony was provided during the Council meeting. The Council recommended that NMFS issue the EFPs, as requested by the States.

Renewal of these EFPs, to about 40 vessels, would continue an ongoing program to collect information on the incidental catch of salmon and groundfish in whiting harvests delivered to shoreside processing facilities by domestic trawl vessels operating off WOC. Because whiting deteriorates rapidly, it must be handled quickly and immediately chilled to maintain the quality. As a result, many vessels dump catch directly or near directly into the hold and are unable to effectively sort their catch.

The issuance of EFPs will allow vessels to delay sorting of prohibited species and groundfish caught in excess of cumulative trip limits until offloading. Delaying sorting until the vessel offloads will allow state biologists to collect incidental catch data for total catch estimates while maintaining whiting quality. Without an EFP, groundfish regulations at 50 CFR 660.306(b) require vessels to sort out prohibited species and return them to sea as soon as practicable with minimum injury. To allow state biologists to sample unsorted whiting, it is also necessary to include provisions for potential overages of groundfish trip limits which would be otherwise prohibited by regulations at 50 CFR 660.306(h).

In the 1999 annual management measures for ocean salmon fisheries (64 FR 24078, May 5, 1999), NMFS announced that the Pacific Fishery Management Council (Council) would consider at its March 2000 meeting a recommendation to open commercial and recreational seasons for all salmon except coho in areas off Oregon. Due to the timing of the March and April Council meetings, where the major 2000 salmon seasons are developed, this action is necessary to implement the opening of these seasons prior to May 1, 2000. In the 1999 management measures for 2000 ocean salmon fisheries, NMFS announced that the recreational fishery would not open until May 1, 2000, between Cape Falcon and Humbug Mountain, OR, for all salmon except coho, unless opened following an inseason recommendation of the Council at the March 2000 meeting. In addition, the Council may also consider inseason modifications to open or modify commercial fisheries off Oregon for all salmon except coho, prior to May 1, 2000.

At the March 2000 meeting, the Council made its inseason recommendations to open the recreational and commercial fisheries, for all salmon except coho, from Cape Falcon to Humbug Mountain, OR, on April 1, 2000. The closing dates for both fisheries will be determined at the April 2000 meeting when the entire 2000 management measures for the 2000 ocean salmon fisheries are finalized.

The recreational fishery for all salmon except coho, from Cape Falcon to Humbug Mountain, OR, opens on April 1, 2000. The daily possession limit is two fish per day, with no more than six fish retained in 7 consecutive days. The minimum size limit is 20 inches (50.8 cm). Allowed gear is artificial lures and plugs of any size, or bait no less than 6 inches (15.2 cm) long (excluding hooks and swivels). All gear must have no more than two single-point, single-shank, barbless hooks. Divers are prohibited and flashers may only be used with downriggers. Oregon State regulations describe a closure at the mouth of Tillamook Bay.

The commercial fishery for all salmon except coho, from Cape Falcon to Humbug Mountain, OR, opens on April 1, 2000. No more than four spreads are allowed per line. The minimum size limit is 26 inches (66.0 cm) (19.5 in (49.5 cm) head-off). Chinook not less than 26 inches (66.0 cm) (19.5 inches (49.5 cm) head-off) taken during open seasons south of Cape Falcon may be landed north of Cape Falcon only while the season is closed north of Cape Falcon. Oregon state regulations describe a closure at the mouth of Tillamook Bay.

The Regional Administrator consulted with representatives of the Council, Washington Department of Fish and Wildlife, Oregon Department of Fish and Wildlife, and the California Department Fish and Game regarding these adjustments. As provided by the inseason notification procedures at 50 CFR 660.411, actual notice to fishermen of these actions will be given prior to 0001 hours local time, April 1, 2000, by telephone hotline number 206-526-6667 or 800-662-9825 and by U.S. Coast Guard Notice to Mariners broadcasts on Channel 16 VHF-FM and 2182 kHz.

Because of the need for immediate action, NMFS has determined that good cause exists for this document to be issued without affording a prior opportunity for public comment. This document does not apply to other fisheries that may be operating in other areas.

This action is authorized by 50 CFR 660.409 and 660.411 and is exempt from review under E.O. 12866.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

In accordance with § 679.20(c)(3)(ii), the pollock TAC for 2000 in the West Yakutat District of the GOA is 2,340 metric tons (mt) under the Final 2000 Harvest Specifications of Groundfish for the GOA (65 FR 8298, February 18, 2000).

NMFS closed the directed fishery for pollock in the West Yakutat District of the GOA under § 679.20(d)(1)(iii) on March 28, 2000 (65 FR 17205, March 31, 2000).

NMFS has determined that currently, approximately 600 mt remain in the directed fishing allowance. Therefore, NMFS is terminating the previous closure and is opening directed fishing for pollock in the West Yakutat District of the GOA.

All other closures remain in full force and effect. This action responds to the best available information recently obtained from the fishery. It must be implemented immediately in order to allow full utilization of the pollock TAC. Providing prior notice and opportunity for public comment for this action is impracticable and contrary to the public interest. NMFS finds for good cause that the implementation of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.

This action is required by § 679.20 and is exempt from review under E.O. 12866.