The Office of Federal Housing Enterprise Oversight (OFHEO) published a proposed regulation at 65 FR 7312 on February 14, 2000, that would implement the Equal Access to Justice Act (Act), 5 U.S.C. 504. OFHEO requested comments on the proposed regulation but did not receive any. Accordingly, the proposed regulation is published as a final regulation without change.

The Act provides that eligible individuals and entities that are parties to adversary adjudications before Federal agencies may file an application for an award of fees and other expenses. Eligible parties may receive an award for fees and other expenses incurred by them in connection with an adversary adjudication before OFHEO if they prevail over OFHEO, unless the position of OFHEO in the adversary adjudication was substantially justified. Eligible parties may also receive an award for fees and other expenses incurred by them in defending against a demand by OFHEO if the demand of OFHEO was substantially in excess of the decision in the adversary adjudication and was unreasonable when compared with such decision.

The Act requires that OFHEO and other Federal agencies establish procedures for the filing and consideration of applications for an award of fees and other expenses. Subpart A of the final regulation sets forth definitions, eligibility requirements, standards for awards, and allowable fees and expenses. Subpart B describes the information that must be included in an application for award and Subpart C provides the procedures for filing and consideration of an application for award.

The provisions of the final regulation reflect the 1996 amendments to the Act that were enacted pursuant to Pub. L. 104-121, 110 Stat. 862 (1996). Furthermore, to the extent appropriate, the provisions of the final regulation are substantially similar to the provisions of the Model Rules for Implementation of the Equal Access to Justice Act in Agency Proceedings, 1 CFR part 315 (1986) (51 FR 16659—16669 (May 6, 1986)).

The final regulation is not classified as a significant rule under Executive Order 12866 because it will not result in an annual effect on the economy of $100 million or more or a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or have significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic or foreign markets. Accordingly, no regulatory impact assessment is required and this final regulation has not been submitted to the Office of Management and Budget for review.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires that a regulation that has a significant economic impact on a substantial number of small entities, small businesses, or small organizations must include an initial regulatory flexibility analysis describing the regulation's impact on small entities. Such an analysis need not be undertaken if the agency has certified that the regulation will not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605(b). OFHEO has considered the impact of the final regulation under the Regulatory Flexibility Act. The General Counsel of OFHEO certifies that the final regulation, if adopted, is not likely to have a significant economic impact on a substantial number of small business entities because the number of applications for awards by small entities is expected to be extremely small.

The final regulation does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ).

The final regulation does not require the preparation of an assessment statement in accordance with the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531. Assessment statements are not required for regulations that incorporate requirements specifically set forth in law. As explained in the preamble, the final regulation implements specific statutory requirements. In addition, the final regulation does not include a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year.

The FAA has received a report of the rudder cable slipping out of the Nicopress TM sleeve while a Maule Model M-7-235C airplane was landing. Investigation of this accident revealed that the Nicopress TM sleeve was not adequately crimped and was slightly larger than the gauge dimension.

Maule did not set a crimping tool to correct specification for the elevator and rudder cables that were installed on certain Maule airplane models on Type Certificate No. 3A23, Revision 26, dated April 6, 2000. Maule has no way of determining exactly what time frame the crimping tool was not set to specification. Each airplane utilizes approximately 27 Nicopress TM sleeves.

The airplane models affected are listed in the AD portion of this document.

An improperly crimped Nicopress TM sleeve, if not detected and corrected, could cause a control cable to slip from the sleeve. This could result in loss of rudder, elevator, aileron, or flap control.

Maule has issued Mandatory Service Bulletin No. 20, dated December 27, 1999.

The service bulletin:

• Includes procedures for inspection of all Nicopress TM sleeve terminal ends for correct size compression; and

• Specifies provisions for adjustment or replacement, as necessary.

After examining the circumstances and reviewing all available information related to the incidents described above, including the relevant service information, FAA has determined that:

• An unsafe condition exists or could develop on certain Maule M-4, M-5, M-6, M-7, MX-7, and MXT-7 series airplanes and Models MT-7-235 and M-8-235 airplanes of the same type design; and

• AD action should be taken in order to detect and correct improper crimping of the Nicopress TM sleeve, which could cause a control cable to slip from the sleeve.

This AD requires you to inspect all Nicopress TM sleeve terminal ends for correct size compression, with adjustment or replacement, as necessary.

Because the unsafe condition described in this document could result in loss of rudder, elevator, aileron, or flap control, FAA finds that notice and opportunity for public prior comment are impracticable. Therefore, good cause exists for making this amendment effective in less than 30 days.

Although this action is in the form of a final rule and was not preceded by notice and opportunity for public comment, FAA invites comments on this rule. You may submit whatever written data, views, or arguments you choose. You need to include the rule's docket number and submit your comments in triplicate to the address specified under the caption ADDRESSES . The FAA will consider all comments received on or before the closing date. We may amend this rule in light of comments received. Factual information that supports your ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether we need to take additional rulemaking action.

The FAA is re-examining the writing style we currently use in regulatory documents, in response to the Presidential memorandum of June 1, 1998. That memorandum requires federal agencies to communicate more clearly with the public. We are interested in your comments on whether the style of this document is clearer, and any other suggestions you might have to improve the clarity of FAA communications that affect you. You can get more information about the Presidential memorandum and the plain language initiative at http://www.plainlanguage.gov.

The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. You may examine all comments we receive before and after the closing date of the rule in the Rules Docket. We will file a report in the Rules Docket that summarizes each FAA contact with the public that concerns the substantive parts of this AD.

If you want us to acknowledge the receipt of your comments, you must include a self-addressed, stamped postcard. On the postcard, write “Comments to Docket No. 2000-CE-04-AD.” We will date stamp and mail the postcard back to you.

These regulations 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, FAA has 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 is not a significant regulatory action under Executive Order 12866. We have determined that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If FAA determines that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, we will prepare a final regulatory evaluation. You may obtain a copy of the evaluation (if required) from the Rules Docket.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain McDonnell Douglas Model DC-9 series airplanes, and Model MD-88 and MD-90-30 airplanes was published as a supplemental notice of proposed rulemaking (NPRM) in the Federal Register on November 26, 1999 (64 FR 66417). That action proposed to require replacement of the lanyard assembly pins of the evacuation slides with solid corrosion-resistant pins.

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

One commenter supports the proposed AD. Another commenter states that the proposed AD does not affect its fleet.

Two commenters request that the applicability statement of the proposed AD be revised to exclude freighter airplanes on which emergency evacuation slides have not been installed. The commenters state that such a revision would eliminate alternative method of compliance (AMOC) requests. The commenters did not provide any data to substantiate their request.

The FAA does not concur. The FAA is unable to verify that all freighter airplanes are not equipped with evacuation slides. Therefore, all affected freighter airplanes must be included in the applicability statement of the final rule. However, under the provisions of paragraph (c) of the final rule, the FAA may consider requests for approval of an AMOC if sufficient data are submitted to substantiate that replacement of the lanyard pins with solid corrosion-resistant pin are not necessary.

One commenter questions whether Boeing latch assembly, part number (P/N) 69-70843-1, should be included in the applicability statement of the proposed AD. The commenter states that the roll pin, P/N MS39086-140, which resulted in the corrosion problem, is present in the Boeing latch assembly, as well as the Douglas latch assembly, P/N's 3961899-1 and 3956939-501.

The FAA has determined that the subject Boeing latch assemblies are not susceptible to stress corrosion, and therefore, are not subject to the identified unsafe condition of this AD. Therefore, no change to the final rule is necessary.

One commenter requests that the FAA approve lanyard assembly pin, P/N MS16555-627, as an AMOC for the pin required by the AD (reference McDonnell Douglas Alert Service Bulletin DC9-25A357, dated February 11, 1997). The commenter states that this pin is shorter and would not require any machining. If the FAA does not approve the pin having P/N MS16555-627, the commenter requests that the FAA approve the installation of an unmodified pin, P/N MS16555-628, which would protrude from the latch assembly. The commenter states that both of these alternatives would not interfere with the operation of the lanyard or deployment of the slide and would provide the same level of safety as the pin required by the AD.

The FAA does not concur. The FAA finds that the shorter pin would not provide an equivalent level of safety to that of the pin required by the AD, because the taper on the end of the shorter pin would not provide the same level of pin retention. The shorter pin could become loose and fall out of the latch, thus causing the latch to fail. The FAA also finds that a pin that extends past the surface of the latch could cause the latch to hang up and fail. Therefore, no change to the final rule is necessary.

One commenter requests that the proposed AD be revised to include an AMOC, which was approved by the airplane manufacturer, to eliminate the need of each airline making a request to the FAA on an individual basis. The commenter states that the AMOC involves a program to accomplish, among other things, an initial check of the lanyard and then to periodically check, clean, and refurbish the subject lanyards with new roll pins of the same P/N.

The FAA does not concur. Because Airplane Maintenance Programs vary from operator to operator, there are no assurances that each operator's Airplane Maintenance Program contains the identical actions required by this AD. However, under the provisions of paragraph (c) of the final rule, the FAA may consider requests for approval of an AMOC if sufficient data are submitted to substantiate that such an AMOC would provide an acceptable level of safety.

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

There are approximately 2,167 McDonnell Douglas Model DC-9 series airplanes, and Model MD-88 and MD-90-30 airplanes of the affected design in the worldwide fleet. The FAA estimates that 1,200 airplanes of U.S. registry will be affected by this AD, that it will take approximately 2 work hours per airplane to accomplish the required actions, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $144,000, or $120 per airplane.

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

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

This amendment to part 95 of the Federal Aviation Regulations (14 CFR part 95) amends, suspends, or revokes IFR altitudes governing the operation of all aircraft in flight over a specified route or any portion of that route, as well as the changeover points (COPs) for Federal airways, jet routes, or direct routes as prescribed in part 95.

The specified IFR altitudes, when used in conjunction with the prescribed changeover points for those routes, ensure navigation aid coverage that is adequate for safe flight operations and free of frequency interference. The reasons and circumstances that create the need for this amendment involve matters of flight safety and operational efficiency in the National Airspace System, are related to published aeronautical charts that are essential to the user, and provide for the safe and efficient use of the navigable airspace. In addition, those various reasons or circumstances require making this amendment effective before the next scheduled charting and publication date of the flight information to assure its timely availability to the user. The effective date of this amendment reflects those considerations. In view of the close and immediate relationship between these regulatory changes and safety in air commerce, I find that notice and public procedure before adopting this amendment are impracticable and contrary to the public interest and that good cause exists for making the amendment effective in less than 30 days.

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

In a notice published in the Federal Register of November 30, 1998 (63 FR 65793), FDA announced that a food additive petition (FAP 8B4631) had been filed by BF Goodrich Specialty Chemicals, 9911 Brecksville Rd., Cleveland, OH 44141. The petition proposed to amend the food additive regulations in § 177.1210 Closures with sealing gaskets for food containers (21 CFR 177.1210) to provide for the safe use of polyurethane resins manufactured from diphenylmethane diisocyanate, 1,4-butanediol, and adipic acid as a component of cap liners used on bottles in contact with food.

In its evaluation of the safety of these resins, FDA has reviewed the safety of the additive itself, the starting materials used, and the chemical impurities that may be present in the additive resulting from its manufacturing process. Although the additive itself has not been shown to cause cancer, it has been found to contain residual amounts of methylene dianiline (MDA), which has been shown to cause cancer in test animals. MDA is produced when diphenylmethane diisocyanate (MDI), a starting material used in the manufacture of polyurethane resins, reacts with water. Residual amounts of reactants and manufacturing aids, such as MDA, are commonly found as contaminants in chemical products, including food additives.

Under the general safety standard of section 409(c)(3)(A) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 348(c)(3)(A)), a food additive cannot be approved for a particular use unless a fair evaluation of the data available to FDA establishes that the additive is safe for that use. FDA's food additive regulations (21 CFR 170.3(i)) define safe as “a reasonable certainty in the minds of competent scientists that the substance is not harmful under the intended conditions of use.”

The food additives anticancer, or Delaney clause of the act (section 409(c)(3)(A)) provides that no food additive shall be deemed safe if it is found to induce cancer when ingested by man or animal. Importantly, however, the Delaney clause applies to the additive itself and not to the impurities in the additive. That is, where an additive itself has not been shown to cause cancer, but contains a carcinogenic impurity, the additive is properly evaluated under the general safety standard using risk assessment procedures to determine whether there is a reasonable certainty that no harm will result from the intended use of the additive ( Scott v. FDA , 728 F.2d 322 (6th Cir. 1984)).

The petitioner determined the levels of three migrants extracted from the additive, polyurethane resins manufactured from MDI, 1,4-butanediol, and adipic acid. These three migrants were 1,4-butanediol, oligomers of the additive, and MDA (the hydrolysis product of MDI). FDA agrees that the determination of the levels of these three types of migrants are appropriate to evaluate the safe use of the additive. FDA estimates that the petitioned use of the additive will result in exposure to 1,4-butanediol of not more than 90 micrograms per person per day (μg/p/d) while exposure to the other two migrants will be even lower (Ref. 1).

FDA does not ordinarily consider chronic toxicological studies to be necessary to determine the safety of an additive whose use will result in such low exposure levels (Ref. 2), and the agency has not required such testing here. However, the agency has reviewed the available toxicological data on the additive and concludes that the estimated dietary exposure resulting from the petitioned use of this additive is safe.

FDA has evaluated the safety of this additive under the general safety standard, considering all available data and using risk assessment procedures to estimate the upper-bound limit of lifetime human risk presented by MDA, the carcinogenic chemical that may be present as an impurity in the additive. This risk evaluation of MDA has two aspects: (1) Assessment of exposure to the impurity from the petitioned use of the additive; and (2) extrapolation of the risk observed in the animal bioassay to the conditions of probable exposure to humans.

FDA has estimated the exposure to MDA from the petitioned use of the additive in the manufacture of cap liners intended to contact food to be no more than 4.1 parts per trillion in the daily diet, or 0.012 μg/p/d (Refs. 1 and 5). The agency used data from a bioassay of MDA, sponsored by the National Toxicology Program, to estimate the upper-bound limit of lifetime human risk from exposure to MDA that may result from the proposed use of the additive (Ref. 3). The bioassay report showed that MDA ingestion produced tumors at multiple sites in both sexes of rats and mice.

Based on the agency's estimate that exposure to MDA will not exceed 0.012 μg/p/d, FDA estimates that the upper-bound limit of lifetime human risk for MDA from the petitioned use of the subject additive is 1 x 10 -8 or 1 in 100 million (Ref. 4). Because of numerous conservative assumptions used in calculating the exposure estimate, the actual lifetime-averaged individual exposure to MDA is likely to be substantially less than the estimated exposure, and therefore, the probable lifetime human risk would be less than the upper-bound limit of lifetime human risk. Thus, the agency concludes that there is reasonable certainty that no harm from exposure to MDA would result from the petitioned use of the additive.

The agency also has considered whether specifications are necessary to control the amount of MDA present as an impurity in the additive. The agency finds that the specifications are not necessary for the following reasons: (1) Because of the low level at which MDA may be expected to remain as an impurity following production of the additive, the agency would not expect the impurity to become a component of food at other than extremely low levels; and (2) the upper-bound limit of lifetime human risk from exposure to MDA is very low, less than 1 in 100 million.

FDA has evaluated the data in the petition and other relevant material. Based on this information, the agency concludes that the proposed use of the additive as a component of cap liners for food-contact articles is safe, that the food additive will achieve its intended technical effect, and that the regulations in § 177.1210 should be amended as set forth below.

In accordance with § 171.1(h) (21 CFR 171.1(h)), the petition and the documents that FDA considered and relied upon in reaching its decision to approve the petition are available for inspection at the Center for Food Safety and Applied Nutrition by appointment with the contact person listed above. As provided in § 171.1(h), the agency will delete any materials from the documents that are not available for public disclosure before making the documents available for inspection.

The agency has previously considered the environmental effects of this rule as announced in the notice of filing for FAP 8B4631 (63 FR 65793, November 30, 1998). No new information or comments have been received that would affect the agency's previous determination that there is no significant impact on the human environment and that an environmental impact statement is not required.

This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

Any person who will be adversely affected by this regulation may at any time file with the Dockets Management Branch (address above) written objections by June 8, 2000. Each objection shall be separately numbered, and each numbered objection shall specify with particularity the provisions of the regulation to which objection is made and the grounds for the objection. Each numbered objection on which a hearing is requested shall specifically so state. Failure to request a hearing for any particular objection shall constitute a waiver of the right to a hearing on that objection. Each numbered objection for which a hearing is requested shall include a detailed description and analysis of the specific factual information intended to be presented in support of the objection in the event that a hearing is held. Failure to include such a description and analysis for any particular objection shall constitute a waiver of the right to a hearing on the objection. Three copies of all documents are to be submitted and are to be identified with the docket number found in brackets in the heading of this document. Any objections received in response to the regulation may be seen in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.

The following references have been placed on display in the Dockets Management Branch (address above) and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday.

In a notice published in the Federal Register of June 22, 1999 (64 FR 33306), FDA announced that a food additive petition (FAP 9B4675) had been filed by Cytec Industries, Inc., c/o Keller and Heckman LLP, 1001 G St. NW., suite 500 West, Washington DC 20001. The petition proposed to amend the food additive regulations in § 178.2010 Antioxidants and/or stabilizers for polymers (21 CFR 178.2010) to provide for the safe use of 2-[4,6-bis(2,4-dimethylphenyl)-1,3,5-triazin-2-yl]-5-(octyloxy)phenol as a stabilizer for olefin polymers intended for use in contact with food.

FDA has evaluated the data in the petition and other relevant material. Based on this information, the agency concludes that: (1) The proposed use of the additive is safe, (2) the additive will achieve its intended technical effect, and therefore, (3) that the regulations in § 178.2010 should be amended as set forth below.

In accordance with § 171.1(h) (21 CFR 171.1(h)), the petition and the documents that FDA considered and relied upon in reaching its decision to approve the petition are available for inspection at the Center for Food Safety and Applied Nutrition by appointment with the information contact person listed above. As provided in 21 CFR 171.1(h), the agency will delete from the documents any materials that are not available for public disclosure before making the documents available for inspection.

The agency has previously considered the environmental effects of this rule as announced in the notice of filing for FAP 9B4675. No new information or comments have been received that would affect the agency's previous determination that there is no significant impact on the human environment and that an environmental impact statement is not required.

This final rule contains no collections of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

Any person who will be adversely affected by this regulation may at any time file with the Dockets Management Branch (address above) written objections by June 8, 2000. Each objection shall be separately numbered, and each numbered objection shall specify with particularity the provisions of the regulation to which objection is made and the grounds for the objection. Each numbered objection on which a hearing is requested shall specifically so state. Failure to request a hearing for any particular objection shall constitute a waiver of the right to a hearing on that objection. Each numbered objection for which a hearing is requested shall include a detailed description and analysis of the specific factual information intended to be presented in support of the objection in the event that a hearing is held. Failure to include such a description and analysis for any particular objection shall constitute a waiver of the right to a hearing on the objection. Three copies of all documents are to be submitted and are to be identified with the docket number found in brackets in the heading of this document. Any objections received in response to the regulation may be seen in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.

Ivy Laboratories, Div. of Ivy Animal Health, Inc., 8857 Bond St., Overland Park, KS 66214, filed supplemental ANADA 200-221 for use of Component® TE-G (40 milligrams (mg) trenbolone acetate and 8 mg estradiol, in 2 pellets, each pellet containing 20 mg of trenbolone acetate and 4 mg of estradiol) for increased rate of weight gain in pasture cattle (slaughter, stocker, and feeder steers and heifers). The supplemental ANADA is approved as of March 6, 2000, and the regulations in 21 CFR 522.2477 are amended to reflect the approval. The basis of approval is discussed in the freedom of information summary.

In accordance with the freedom of information provisions of 21 CFR part 20 and 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

The agency has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

Pursuant to the authority cited below, the Department of the Navy amends 32 CFR Part 727, which is derived from Chapter VII of the Manual of the Judge Advocate General, to reflect changes to that regulation. The amendment relates to internal naval management and personnel practices, and is being published by the Department of the Navy solely for the guidance and interest of the public in accordance with 5 U.S.C. 552(a)(1). It has been determined that invitation of public comment on this amendment prior to adoption would be impracticable and is not required under the public rulemaking provisions of 32 CFR parts 296 and 701. It has also been determined that this rule is not a “significant regulatory action” as defined in Executive Order 12866.

On April 28, 2000, the Coast Guard published a temporary final rule entitled Safety Zone; Kachemak Bay, Alaska, in the Federal Register (65 FR 24874) to be effective from 12:01 a.m. on May 4, 2000, until 11:59 p.m. on May 9, 2000. The Coast Guard has been notified that the estimated time of arrival of the M/V SWAN has been changed to May 10, 2000.

As published, the effective date of the temporary final rule is now incorrect and therefore needs to be changed to reflect the new arrival time of M/V SWAN.

On January 24, 2000, the Postal Service made a public announcement in the Federal Register , Volume 65, that any mailer using commercially printed special services labels on or after June 10, 2000, will be required to meet the new barcoded special services label requirements. In response to information received by the Postal Service from the mailing community since the January 24, 2000, announcement, the Postal Service is extending the compliance date for barcoded special services labels from June 10, 2000, to February 3, 2001. Any mail with PS Form 3800, Certified Mail Receipt, PS Form 3813P, Receipt for Insured Mail—Domestic-International, PS Form 8099, Receipt for Recorded Delivery, Label 200, Registered Mail, and PS Form 3804, Return Receipt for Merchandise, on or after February 3, 2001, will be required to meet the barcode requirements. The final rule changes affecting the barcoding of special services labels and forms are set forth in the June 1 update to the Domestic Mail Manual (DMM) and in the International Mail Manual (IMM). The technical requirements for producing barcoded special services labels and forms are published in Publication 109, Special Services Technical Guide—Postal Forms and Labels, published March 2000. Publication 109 is available on the Postal Service Web site (http://www.usps.com). Click on “Get Info,” then “Postal Periodicals and Publications,” then “Publications,” and scroll to Publication 109.

States that have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask EPA to authorize their changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.

We conclude that Montana's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant Montana Final authorization to operate its hazardous waste program with the changes described in the authorization application. Montana has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders, except in Indian Country, and for carrying out those portions of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by EPA under the authority of HSWA take effect immediately and will be implemented by EPA until the State is granted authorization.

The effect of this decision is that a facility in Montana subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements. Montana has primary enforcement responsibilities under its state hazardous waste program for violations of the program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:

• Conduct inspections, and require monitoring, tests, analyses, or reports; and

• Enforce RCRA requirements and suspend or revoke permits.

• Take enforcement actions regardless of whether the State has taken its own actions.

This action does not impose additional requirements on the regulated community because the regulations for which Montana is being authorized are already effective, and are not changed by today's action.

EPA did not publish a proposed rule before today's rule because we view this as a routine program change and do not expect significant written comments opposing this approval. We are providing an opportunity for public comment at this time. In addition, in the proposed rules section of today's Federal Register , there is a separate document that proposes to authorize the State program changes. If we receive significant written comments opposing this authorization, that document will serve as a proposal to authorize the changes.

If we receive significant written comments opposing this authorization, we will withdraw this rule by publishing a document in the Federal Register before the rule becomes effective. We then will address all public comments in a later Federal Register . You may not have another opportunity to comment. If you want to comment on this action, you must do so at this time.

If we receive significant written comments opposing authorization of only a particular change to the State hazardous waste program, we will withdraw that part of the rule. However, the authorization of program changes that are not opposed by any comments will become effective on the date specified above. The Federal Register withdrawal document will specify which part of the authorization will become effective and which part is being withdrawn.

Montana initially received Final authorization on July 11, 1984, effective July 25, 1984 (49 FR 28245) to implement the RCRA hazardous waste management program. We granted authorization for changes to their program on July 11, 1984, effective September 25, 1985 (49 FR 28245), and January 19 1994, effective March 21, 1994 (59 FR 02752).

The Administrative Rules of Montana (ARM) were renumbered on October 30, 1995. The Montana hazardous waste rules that were previously found at ARM 16.44 are now found at ARM 17.54. All chapter and paragraph numbering remain the same (i.e., the old 16.44.101 is now 17.54.101) except as noted below:

In February 1995, Montana submitted a final revision application, seeking authorization of program changes in accordance with 40 CFR 271.21.

We now make an immediate final decision, subject to receipt of significant written comments opposing this action, that Montana's hazardous waste program revision satisfies all of the requirements necessary for Final authorization. Therefore, we grant Montana Final authorization for the following program changes:

The following State requirements are considered to be more stringent than the Federal requirements: ARM 17.54.113(4) and 17.54.126(2) as they relate to Boiler and Industrial Furnaces only and ARM 17.54.435(6) regarding Annual Reporting requirements. Nevertheless, these requirements are part of Montana's authorized program and are Federally enforceable.

States cannot assume the authority at 40 CFR 262.53 regarding the “Notifications of Intent to Export” and “Acknowledgments of Consent.” EPA will continue to implement these requirements. As indicated in the above paragraph, Montana is more stringent because it requires reporting to the State (ARM 17.54.435(6)), as well as, the EPA.

Montana will issue and administer permits for all the provisions for which it is authorized. EPA will continue to administer any RCRA hazardous waste permits or portions of permits that we issued prior to the effective date of this authorization. EPA will transfer any pending permit applications, completed permits, or pertinent file information to Montana within 30 days after the effective date of this approval. We will not issue any more new permits or new portions of permits for the provisions listed in the Table above after the effective date of this authorization. EPA and Montana have agreed to joint permitting and enforcement for those HSWA requirements for which Montana is not yet authorized.

Montana is not authorized to carry out its hazardous waste program in Indian country, as defined in 18 U.S.C. 1151. This includes:

Therefore, this action has no effect in Indian country where EPA will continue to implement and administer the RCRA program in these lands.

The State's application did not seek to demonstrate authority over Indian country in Montana. Before EPA could approve the State's program for any portion of Indian country, we must be satisfied that the State has authority, either pursuant to explicit Congressional authorization or applicable principles of Federal Indian law, to enforce its laws against existing and potential pollution sources within any geographical area for which it seeks program approval and that such approval would constitute sound administrative practice.

Codification is the process of placing the State's authorized hazardous waste program statutes and regulations into the Code of Federal Regulations. We do this by referencing the authorized State rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, subpart BB for this authorization of Montana's program changes until a later date.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

EPA has determined that section 202 and 205 requirements do not apply to today's action because this rule does not contain a Federal mandate that may result in annual expenditures of $100 million or more for State, local, and/or tribal governments in the aggregate, or the private sector. Costs to State, local and/or tribal governments already exist under the State program, and today's action does not impose any additional obligations on regulated entities. In fact, EPA's approval of State programs generally may reduce, not increase, compliance costs for the private sector. Further, as it applies to the State, this action does not impose a Federal intergovernmental mandate because UMRA does not include duties arising from participation in a voluntary federal program.

The requirements of section 203 of UMRA also do not apply to today's action because this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Although small governments may be hazardous waste generators, transporters, or own and/or operate TSDFs, they are already subject to the regulatory requirements under the existing State laws that are being authorized by EPA, and, thus, are not subject to any additional significant or unique requirements by virtue of this program approval.

The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute 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 organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's action on small entities, small entity is defined as: (1) A small business as specified in the Small Business Administration regulations; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this authorization on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This action does not impose any new requirements on small entities because small entities that are hazardous waste generators, transporters, or that own and/or operate TSDFs are already subject to the regulatory requirements under the State laws which EPA is now authorizing. This action erely authorizes for the purpose of RCRA section 3006 those existing State requirements.

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. The 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 today's Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

The Office of Management and Budget has exempted this rule from the requirements of Executive Order 12866.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), 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 section 6 of 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 authorization does not have federalism implications. It will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because this rule affects only one State. This action simply approves the State's proposal to be authorized for updated requirements of the hazardous waste program that the State has voluntarily chosen to operate. Further, as a result of this action, newly authorized provisions of the State's program now apply in lieu of the equivalent Federal program provisions implemented by EPA under HSWA. Affected parties are subject only to those authorized State program provisions, as opposed to being subject to both Federal and State regulatory requirements. Thus, the requirements of section 6 of the Executive Order do not apply.

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks,” applies to any rule that: (1) The Office of Management and Budget determines is “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.

EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045 because it authorizes a state program.

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly 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, or EPA consults with those governments. If EPA complies with consulting, Executive Order 13084 requires EPA to 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 officials 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.”

This rule is not subject to Executive Order 13084 because it does not significantly or uniquely affects the communities of Indian tribal governments. The State is not authorized to implement the RCRA hazardous waste program in Indian country. This action has no effect on the hazardous waste program that EPA implements in the Indian country within the State.

Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , Federal agencies must consider the paperwork burden imposed by any information request contained in a proposed rule or a final rule. This rule will not impose any information requirements upon the regulated community.

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) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

On August 1, 1997, September 3, 1997, and March 23, 1999, South Dakota submitted final complete program revision applications seeking authorization of their changes in accordance with 40 CFR 271.21. We now make a final decision that South Dakota's hazardous waste program revisions satisfy all of the requirements necessary to qualify for final authorization. For a list of rules that become effective with this final rule, please see the proposed rule published in the August 10, 1999 Federal Register at 64 FR 43331.

South Dakota is not authorized to carry out its hazardous waste program in Indian country, as defined in 18 U.S.C. 1151. This includes, but is not limited to: Lands within the exterior boundaries of the following Indian Reservations located within the State of South Dakota:

EPA held a public hearing on December 2, 1999, in Badlands National Park, South Dakota, and accepted public comments on the question of the location and extent of Indian country within the State of South Dakota. In a forthcoming Federal Register notice, EPA will respond to comments and more specifically identify Indian country areas in the State of South Dakota.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

EPA has determined that section 202 and 205 requirements do not apply to today's action because this rule does not contain a Federal mandate that may result in annual expenditures of $100 million or more for State, local, and/or tribal governments in the aggregate, or the private sector. Costs to State, local and/or tribal governments already exist under the State program, and today's action does not impose any additional obligations on regulated entities. In fact, EPA's approval of State programs generally may reduce, not increase, compliance costs for the private sector. Further, as it applies to the State, this action does not impose a Federal intergovernmental mandate because UMRA does not include duties arising from participation in a voluntary federal program.

The requirements of section 203 of UMRA also do not apply to today's action because this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Although small governments may be hazardous waste generators, transporters, or own and/or operate TSDFs, they are already subject to the regulatory requirements under the existing State laws that are being authorized by EPA, and, thus, are not subject to any additional significant or unique requirements by virtue of this program approval.

The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute 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 organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's action on small entities, small entity is defined as: (1) A small business as specified in the Small Business Administration regulations; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this authorization on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This action does not impose any new requirements on small entities because small entities that are hazardous waste generators, transporters, or that own and/or operate TSDFs are already subject to the regulatory requirements under the State laws which EPA is now authorizing. This action merely authorizes for the purpose of RCRA section 3006 those existing State requirements.

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. The 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 today's Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

The Office of Management and Budget has exempted this rule from the requirements of Executive Order 12866.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), 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 section 6 of 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 authorization does not have federalism implications. It will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because this rule affects only one State. This action simply approves the State's proposal to be authorized for updated requirements of the hazardous waste program that the State has voluntarily chosen to operate. Further, as a result of this action, newly authorized provisions of the State's program now apply in lieu of the equivalent Federal program provisions implemented by EPA under HSWA. Affected parties are subject only to those authorized State program provisions, as opposed to being subject to both Federal and State regulatory requirements. Thus, the requirements of section 6 of the Executive Order do not apply.

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks,” applies to any rule that: (1) The Office of Management and Budget determines is “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.

EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045 because it authorizes a state program.

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly 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, or EPA consults with those governments. If EPA complies with consulting, Executive Order 13084 requires EPA to 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 officials 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.”

This rule is not subject to Executive Order 13084 because it does not significantly or uniquely affects the communities of Indian tribal governments. The State is not authorized to implement the RCRA hazardous waste program in Indian country. This action has no effect on the hazardous waste program that EPA implements in the Indian country within the State.

Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , Federal agencies must consider the paperwork burden imposed by any information request contained in a proposed rule or a final rule. This rule will not impose any information requirements upon the regulated community.

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) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

This is a summary of the Commission's Second Report and Order, FCC 00-136, adopted April 13, 2000; released April 14, 2000. The full text of the Commission's Second Report and Order is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257) at its headquarters, 445 12th Street, SW, Washington, DC 20554, or may be purchased from the Commission's copy contractor, International Transcription Service, Inc., (202) 857-3800, 1231 20th Street, NW, Washington, DC 20036, or may be reviewed via Internet at http://www.fcc.gov/csb/ or http://www.fcc.gov/cib/dro.

The Second Report and Order contains a new information collection subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new information collection contained in this proceeding.

The Second Report and Order contains a new information collection. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public to comment on the information collection contained in this Second Report and Order as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due July 10, 2000. Comments should address: (a) Whether the new collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.

OMB Control Number: 3060-XXXX.

Title: Accessibility of Programming Providing Emergency Information—Section 79.2.

Form No.: Not Applicable.

Type of Review: New collection.

Respondents: Individuals or households; business or other for-profit; not-for-profit institutions; and/or state, local or tribal governments.

Number of Respondents: 100 viewers and 100 video program distributors = 200 Total Respondents.

Estimated Time per Response: 1 and 2 hours, respectively.

Total Annual Burden: 300 hours.

Cost to Respondents: $ 16,200.

Needs and Uses: The information will be used by the Commission to enforce new § 79.2. Viewers may file complaints alleging violation of this rule with the Commission. The Commission will notify video programming distributors of the complaint, and the distributor will provide the Commission with a response to the complaint.

1. The Second Report and Order (“Order”) adopts a rule requiring that emergency information that is provided to viewers be made accessible to persons with hearing disabilities throughout the transition period established as part of the closed captioning rules. See 47 CFR 79.1. Such information may be made accessible either through closed captioning or by using a method of visual presentation. Emergency information is information, about a current emergency, that is intended to further the protection of life, health, safety, and property, i.e., critical details regarding the emergency and how to respond to the emergency. In determining which particular details about the emergency need to be made accessible, programmers may rely on their own good faith judgments.

2. Definition of emergency information . We find that it is appropriate to define emergency information as information, about a current emergency, provided to viewers that is intended to further the protection of life, health, safety, and property, i.e., critical details regarding the emergency and how to respond to the emergency. Examples of the types of emergencies covered could include tornadoes, hurricanes, floods, tidal waves, earthquakes, icing conditions, heavy snows, widespread fires, discharge of toxic gases, widespread power failures, industrial explosions, civil disorders, school closings and changes in school bus schedules resulting from such conditions, and warnings and watches of impending changes in weather. These examples are intended to provide guidance as to what is covered by the rule and are not intended to be an exhaustive list.

3. Our definition of emergency information will include the provision of critical details in an accessible manner. Critical details could include, among other things, specific details regarding the areas that will be affected by the emergency, evacuation orders, detailed descriptions of areas to be evacuated, specific evacuation routes, approved shelters or the way to take shelter in one's home, instructions on how to secure personal property, road closures, and how to obtain relief assistance. In determining whether particular details need to be made accessible, we will permit programmers to rely on their own good faith judgments. Under this rule, distributors are not required to provide in an accessible format all of the information about an emergency situation that they are providing to viewers aurally, only the aural information intended to further the protection of life, health, safety, and property.

4. Accessibility of Emergency Information . The rule we are adopting requires that emergency information that is provided in the audio portion of the programming must be accessible to persons with hearing disabilities, either through closed captioning or by using a method of visual presentation. Such methods include, but are not limited to, open captioning, crawls or scrolls. These rules apply regardless of whether the provision of information regarding an emergency occurs during a regularly scheduled newscast, an unscheduled break-in during regular programming, as part of continuing coverage of a situation, or in any other fashion. We will adopt the suggestion of some commenters that we restrict the application of the rule to the provision of emergency information that is primarily intended for distribution to an audience in the geographic area in which the emergency is occurring.

5. As was noted in the June 1999 Fact Sheet on Closed Captioning, the Commission has received numerous reports of the loss of captioning during otherwise captioned programs. The requirement that video distributors “pass through” to viewers all captions they receive is intended to ensure that captioned programs are distributed with captions from beginning to end without exception. The Fact Sheet reminded video distributors that when providing other information, such as school closings or weather warnings, readable captions should continue to be provided. We endorse this interpretation and amend our rules to require that emergency information provided by means other than closed captioning should not block any closed captioning, and vice versa.

6. Exemptions . Because we are not mandating the use of closed captioning as the sole means for making emergency information accessible, we find that exemptions to this rule are unnecessary. Consistent with this conclusion, with respect to entities that are exempt from any aspect of the closed captioning rules, we find that such exemption does not extend to the obligation to provide accessible emergency information. Expenses for complying with this rule shall not be counted when making calculations of expenditures under 47 CFR 79.1(d)(11). All entities, therefore, must comply with the rule adopted in this Order.

7. Responsibility for and determination of compliance. As with the closed captioning rules, video programming distributors will be responsible for compliance with the rule and video programming distributors will not be responsible for video programming that is by law not subject to their editorial control, including but not limited to the signals of television broadcast stations distributed by multichannel video programming distributors. A local broadcast station licensee, as the video programming distributor, will be responsible for its compliance with the rule regardless of the delivery technology used to deliver its signals to consumers ( e.g., cable, direct broadcast satellite service). We note that many local or regional nonbroadcast networks are owned by the multichannel video programming distributors. Where the network is not owned by the multichannel video programming distributor, as we noted in the closed captioning rules, we expect that distributors will incorporate the requirement into their contracts with producers and owners, and that parties will negotiate for an efficient allocation of responsibilities.

8. Those entities that are permitted to count captions created using the electronic newsroom technique still must comply with this rule. Where they cannot provide the required emergency information using this technique, they must use another method of visual presentation to ensure the same accessibility for persons with hearing disabilities as for any other viewer, as required by the rule.

9. In the Order on Reconsideration in this proceeding, 63 FR 55959 (October 20, 1998), we limited those entities for which the electronic newsroom technique may count towards compliance with the closed captioning rules. We stated that, as we move through the transition period, we will continue to review and expand the class of providers that cannot count the electronic newsroom technique towards compliance with the closed captioning rules, and that we expect that the ability to use the electronic newsroom technique will by far be the exception rather than the general rule, and that only those entities that are so small or who present unusual circumstances will be permitted to continue to use the electronic newsroom technique because live closed captioning would be an economic burden. To the extent we continue to permit entities to use the electronic newsroom technique, we will determine whether these entities will be permitted to continue to use means other than closed captioning for emergency information in the context of reviewing and expanding the limitation on the use of the electronic newsroom technique.

10. In recognition of this problem and viewers' frustration when captions are lost during a program, the current rules require video program distributors to transmit the original closed captions of a captioned program to viewers intact unless the program is edited and the captions would have to be reformatted. Video distributors also are responsible for making sure that their equipment is working properly to ensure the accurate transmission of the closed captions. Any loss of captions prior to the end of a program or scrambling of captions would be a violation of this rule.

11. Enforcement. Complaints may be filed with the Commission and viewers do not have to wait until after the end of the current calendar quarter before filing, or receiving a response to, their complaints. A complaint alleging a violation of this section may be transmitted to the Commission by any reasonable means, such as letter, facsimile transmission, telephone (voice/TRS/TTY), Internet e-mail, audio-cassette recording, and Braille, or some other method that would best accommodate the complainant's disability. The complaint should include the name of the video programming distributor against whom the complaint is alleged, the date and time of the omission of emergency information, and the type of emergency. The Commission will notify the video programming distributor of the complaint, and the distributor will reply to the complaint within 30 days.

12. Effective Date. The rule will be effective upon OMB approval.

13. As required by the Regulatory Flexibility Act (“RFA”), 5 U.S.C. 603. The RFA, 5 U.S.C. 601 et seq. , has been amended by the Contract with America Advancement Act of 1996, Public Law No. 104-121, 110 Stat. 847 (1996) (“CWAAA”). Title II of the CWAAA is the Small Business Regulatory Enforcement Fairness Act of 1996 (“SBREFA”). An initial Regulatory Flexibility Analysis (“IRFA”) was incorporated in the Further Notice of Proposed Rulemaking (“FNPRM”) in this proceeding. Closed Captioning and Video Description of Video Programming, Implementation of Section 305 of the Telecommunications Act of 1996, Video Programming Accessibility , MM Docket No. 95-176, Further Notice of Proposed Rulemaking, 63 FR 3070 (January 21, 1998). The Commission sought written public comment on the proposals in the FNPRM, including comment on the IRFA. This Final Regulatory Flexibility Analysis (“FRFA”) conforms to the RFA.

14. Section 713 of the Communications Act, which was added by the Telecommunications Act of 1996, required the Commission to make new video programming fully accessible to persons with hearing disabilities. 47 U.S.C. 613. In the course of adopting rules to implement this section of the Act, the Commission noted its concern that viewers with hearing disabilities may not always have access to the same emergency information as is currently available to other viewers and decided to further examine ways to make this programming accessible. See Report and Order , 62 FR 48487 (September 16, 1997). This Second Report and Order adopts rules to ensure that emergency information is available to persons with hearing disabilities either through closed captioning or by using a method of visual presentation.

15. Telecommunications for the Deaf, Inc. (“TDI”) filed the only comment on the IRFA in the context of its general comments. It proposes that all video programming providers be required to contribute to a Commission administered fund based on their gross revenues. This fund would be used for rebates to small entities ( e.g. , low power television stations, small cable operators) for the costs incurred when providing captioned emergency information. We decline to adopt this proposal since our rule does not require the closed captioning of emergency information. The rule imposes modest obligations on video programming distributors and provides each entity sufficient flexibility to determine the most feasible and affordable method for making emergency information accessible to persons with hearing disabilities.

16. TDI also states that we should not adopt a reporting requirement, except where a specified number of complaints have been logged for non-compliance, because a reporting requirement would impose an undue burden. TDI Comments at 4. The Commission decided that no reporting requirement was necessary to implement the rule, but rather to rely on a complaint process to ensure compliance. Therefore, we will not adopt TDI's suggestion to minimize reporting requirements.

17. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the rules. 5 U.S.C. 603(b)(3). The RFA generally defines “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction” and “the same meaning as the term ‘small business concern' under the Small Business Act” unless the Commission has developed one or more definitions that are appropriate for its activities. 5 U.S.C. 601(3) (incorporating by reference the definition of “small business concern” in 15 U.S.C. 632). A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (“SBA”). 15 U.S.C. 632. Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency after consultation with the Office of Advocacy of the SBA and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register .” Below we address the video programming distributors (i.e., multichannel video programming distributors (“MVPDs”) and broadcast stations) subject to the rule adopted in this Order and provide estimates of the affected small entities.

18. Small MVPDs. The SBA has developed a definition of small entities for cable and other pay television services under Standard Industrial Classification 4841 (SIC 4841), which covers subscription television services, which includes all such companies with annual gross revenues of $11 million or less. 13 CFR 121.201. This definition includes cable systems operators, closed circuit television services, direct broadcast satellite services, multipoint distribution systems, satellite master antenna systems and subscription television services. According to the Census Bureau, there were 1,423 such cable and other pay television services generating less than $11 million in revenue that were in operation for at least one year at the end of 1992. The following provides a more precise estimate for each MVPD service individually.

19. Cable Services or Systems. The Commission has developed, with SBA's approval, its own definition of a “small cable company” and “small system” for the purposes of rate regulation. Under the Commission's rules, a “small cable company,” is one serving fewer than 400,000 subscribers nationwide. 47 CFR 76.901(e). The Commission developed this definition based on its determinations that a small cable company is one with annual revenues of $100 million or less. Based on our most recent information, we estimate that there were 1,439 cable companies that qualified as small cable companies at the end of 1995. Since then, some of those companies may have grown to serve over 400,000 subscribers, and others may have been involved in transactions that caused them to be combined with other cable companies. Consequently, we estimate that there are fewer than 1,439 small entity cable companies that may be affected by the proposal adopted in this Second Report and Order. The Commission's rules also define a “small system,” for the purposes of cable rate regulation, as a cable system with 15,000 or fewer subscribers. 47 CFR 76.901(c). We do not request nor do we collect information concerning cable systems serving 15,000 or fewer subscribers and thus are unable to estimate at this time the number of small cable systems nationwide.

20. The Communications Act also contains a definition of a “small cable operator,” which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” 47 U.S.C. 543(m)(2). The Commission has determined that there are 61,700,000 subscribers in the United States. Therefore, we found that an operator serving fewer than 617,000 subscribers is deemed a small operator, if its annual revenues, when combined with the total annual revenues of all of its affiliates, do not exceed $250 million in the aggregate. 47 CFR 76.1403(b). Based on available data, we find that the number of cable operators serving 617,000 subscribers or less totals 1,450. Although it seems certain that some of these cable system operators are affiliated with entities whose gross annual revenues exceed $250,000,000, we are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.

21. Multichannel Multipoint Distribution Service (“MMDS”). In its IFRA in this proceeding, the Commission included an analysis of local multipoint distribution systems (“LMDS”). At that time, there was one video programming distributor using LMDS frequencies to provide video services. Since the FNPRM, that distributor ceased operation and it appears that LMDS licensees will use these frequencies for services other than video distribution. MMDS systems, often referred to as “wireless cable,” transmit video programming to subscribers using the microwave frequencies of the Multipoint Distribution Service (“MDS”) and Instructional Television Fixed Service (“ITFS”). The Commission has defined “small entity” for purposes of the auction of MDS frequencies as an entity that, together with its affiliates, has average gross annual revenues that are not more than $40 million for the preceding three calendar years. 47 CFR 21.961(b)(1).

This definition of a small entity in the context of MDS auctions has been approved by the SBA. The Commission completed its MDS auction in March 1996 for authorizations in 493 basic trading areas (“BTAs”). Of 67 winning bidders, 61 qualified as small entities. One of these small entities, O'ahu Wireless Cable, Inc., was subsequently acquired by GTE Media Ventures, Inc., which did not qualify as a small entity for purposes of the MDS auction.

22. MDS also includes licensees of stations authorized prior to the auction. As noted, the SBA has developed a definition of small entities for pay television services, which includes all such companies generating $11 million or less in annual receipts. 13 CFR 121.201. This definition includes multipoint distribution systems, and thus applies to MDS licensees and wireless cable operators that did not participate in the MDS auction. Information available to us indicates that there are 832 of these licensees and operators that do not generate revenue in excess of $11 million annually. Therefore, for purposes of the FRFA, we find there are approximately 892 small MDS providers as defined by the SBA and the Commission's auction rules.

23. The SBA definition of small entities for pay television services, which includes such companies generating $11 million in annual receipts, appears applicable to ITFS. 13 CFR 121.201. There are presently 2,032 ITFS licensees. All but 100 of these licenses are held by educational institutions. Educational institutions are included in the definition of a small business. SBREFA also applies to nonprofit organizations and governmental organizations such as cities, counties, towns, townships, villages, school districts, or special districts, with populations of less than 50,000. 5 U.S.C. 601(5). However, we do not collect annual revenue data for ITFS licensees, and are not able to ascertain how many of the 100 non-educational licensees would be categorized as small under the SBA definition. Thus, we tentatively conclude that at least 1,932 licensees are small businesses.

24. Satellite Master Antenna Television (“SMATV”) Systems. The SBA definition of small entities for cable and other pay television services specifically includes SMATV services and, thus, small entities are defined as all such companies generating $11 million or less in annual receipts. 13 CFR 121.201. Industry sources estimate that approximately 5,200 SMATV operators were providing service as of December 1995. Other estimates indicate that SMATV operators serve approximately 1.05 million residential subscribers as of September 1996. The ten largest SMATV operators together pass 815,740 units. If we assume that these SMATV operators serve 50% of the units passed, the ten largest SMATV operators serve approximately 40% of the total number of SMATV subscribers. Because these operators are not rate regulated, they are not required to file financial data with the Commission. Furthermore, we are not aware of any privately published financial information regarding these operators. Based on the estimated number of operators and the estimated number of units served by the largest ten SMATVs, we believe that a substantial number of SMATV operators qualify as small entities.

25. Direct Broadcast Satellite (“DBS”) Service. The SBA includes DBS service in its classification of cable and other pay television services. Therefore, a small DBS service is defined as a company generating $11 million or less in annual receipts. 13 CFR 121.201. As of November 1999, there were four DBS licensees, one of which was not in operation. Providing DBS service requires a great investment of capital to build, launch, and operate satellite systems. Typically, small businesses do not have the financial ability to become DBS licensees because of the high implementation costs associated with launching satellites. Most recent industry statistics suggest that the revenue attributed to DBS subscribers for EchoStar was $682.8 million for the year of 1998 and $1.55 billion for DirecTV. We do not have similar revenue information for the third operating licensee, Dominion Video Satellite, Inc. However, we do not believe that any DBS licensees could be categorized as a small business.

26. Home Satellite Dish (“HSD”) Service. The market for HSD service is difficult to quantify. HSD owners have access to more than 500 channels of programming placed on C-band satellites by programmers for receipt and distribution by MVPDs, of which 350 channels are scrambled and approximately 150 channels are unscrambled. To receive scrambled channels, an HSD owner must purchase an integrated receiver-decoder from an equipment dealer and pay a subscription fee to an HSD programming packager. Thus, those HSD users that subscribe to a programming package are similar to consumers that subscribe to cable and other pay television services. Accordingly, it appears that the definition of small entity under SIC 4841 (i.e., all such companies generating $11 million or less in annual receipts), 13 CFR 121.201, would be applicable to this service.

27. According to the most recently available information, there are approximately 20 to 25 program packagers nationwide offering packages of scrambled programming to retail consumers. As of June 1999, these program packagers provide subscriptions to approximately 1,783,411 subscribers nationwide. This is an average of about 90,000 subscribers per program packager. This is substantially smaller than the 400,000 subscribers used in the Commission's definition of a small multiple system operator (“MSO”). Furthermore, because this is an average, it is likely that some program packagers may be substantially smaller.

28. Open Video System (“OVS”) Service. As part of the Telecommunications Act of 1996, Congress established the OVS framework for the delivery of multichannel video programming service. 47 U.S.C. 571. This new service is similar to cable television and other pay television services. Although OVS is not specifically enumerated under SIC 4841, it is appropriate to include OVS in this classification and to apply the SBA definition of small entity, which includes all such companies generating $11 million or less in annual receipts, to OVS service. 13 CFR 121.201. The Commission has issued 37 certifications to operate OVS systems. Of these 37 certifications, MFS has withdrawn its two certifications for New York City and Boston because it does not intend to operate open video systems in these areas and Bell Atlantic shut down its Dover, New Jersey, system in favor of its distribution agreement with DirecTV. Of these 37 certifications, only one OVS operator, RCN, is providing service in various service areas across the United States. Little financial information is available for the other entities authorized to provide OVS that are not yet operational. We believe that one OVS licensee may qualify as a small business concern. Given that other entities have been authorized to provide OVS service but have not yet begun to generate revenues, we conclude that at least some of the OVS operators qualify as small entities.

29. Small Broadcast Stations. The SBA defines small television broadcasting stations as television broadcasting stations with $10.5 million or less in annual receipts. 13 CFR 121.201, SIC 4833. Television broadcasting stations consist of establishments primarily engaged in broadcasting visual programs by television to the public, except cable and other pay television services. Included in this industry are commercial, religious, educational, and other television stations. Also included are establishments primarily engaged in television broadcasting and which produce taped television program materials.

30. There were 1,509 full-service television stations operating in the nation in 1992. That number has remained fairly constant as indicated by the approximately 1,616 operating full-service television broadcasting stations in the nation as of September 1999. For 1992, the number of television stations that produced less than $10 million in revenue was 1,155 establishments. The amount of $10 million was used to estimate the number of small business establishments because the relevant Census categories stopped at $9,999,999 and began at $10,000,000. No category for $10.5 million existed. Thus, the number is as accurate as it is possible to calculate with the available information. Thus, the rule will affect approximately 1,616 television stations; approximately 77%, or 1,244, of those stations are considered small businesses. We use the 77% figure of television stations operating at less than $10 million for 1992 and apply it to the 1999 total of 1,616 television stations to arrive at stations categorized as small businesses. These estimates may overstate the number of small entities since the revenue figures on which they are based do not include or aggregate revenues from non-television affiliated companies.

31. This Second Report and Order does not adopt any required reporting or recordkeeping. However, when a video programming distributor is notified by the Commission that a complaint alleging violation of the rule has been received, the distributor may submit records, certifications, or other documentation that demonstrate compliance with the rule.

32. In the FNPRM, the Commission sought information and comment regarding the appropriate rules and policies to promote and ensure the accessibility of emergency information to persons with hearing disabilities. We requested comment on whether separate transitional closed captioning requirements are needed for emergency information or whether there are other methods of providing accessibility for this type of programming.

33. In this Second Report and Order , the Commission defines emergency information and adopts a requirement that video programming distributors must make emergency information accessible to persons with hearing disabilities either through closed captioning or by using a method of visual presentation. Such methods include, but are not limited to, open captioning, crawls or scrolls. We concluded that a rule requiring closed captioning or a method of visual presentations achieves the goal of ensuring that the same critical information about an emergency is accessible to persons with hearing disabilities as is available to other viewers. The rule also provides significant flexibility to the video programming distributor by allowing it to determine the most feasible and affordable method for making such information accessible. Therefore, the rule will not impose an economic burden on video programming distributors, including small entities.

34. The Commission will send a copy of this Second Report and Order , including this FRFA, in a report to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801(a)(1)(A). A copy of this Second Report and Order and FRFA (or summary thereof) will also be published in the Federal Register , pursuant to 5 U.S.C.A. 604(b), and will be sent to the Chief Counsel for Advocacy of the Small Business Administration.

35. Pursuant to the authority contained in sections 4(i), 303(r), and 713 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), and 613, the Commission's rules are amended by adding a new § 79.2 as shown in the rule changes. The amendments set forth in the rule changes shall become effective upon approval from the Office of Management and Budget.

36. The Commission's Consumer Information Bureau, Reference Information Center, shall send a copy of this Second Report and Order , including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

The koala ( Phascolarctos cinereus ) is an arboreal mammal found only in Australia. It has a compact body, large head and nose, large and furry ears, powerful limbs, and no significant tail. Mature koalas weigh from 4-15 kilograms (10-35 pounds), with larger animals in southern Australia. The koala is a marsupial, more closely related to kangaroos and possums than to true bears and other placental mammals. Koalas carry their young in a pouch for about 6 months. They occur in the forests and woodlands of central and eastern Queensland, eastern New South Wales, Victoria, and southeastern South Australia.

In a petition dated May 3, 1994, which we received on May 5, 1994, Australians for Animals (AFA) (in Australia) and the Fund for Animals (FFA) (in the United States) requested that the koala be classified as endangered in New South Wales and Victoria, and as threatened in Queensland. About 40 organizations in the United States and Australia were named as supporting the petition. The document included extensive data indicating that the koala has declined dramatically since European settlement of Australia began about 200 years ago and has lost more than half of its natural habitat because of human activity. Once numbering in the millions, the koala was intensively hunted for its fur up through the 1920s. It is totally dependent for food and shelter on certain types of trees within forests and woodlands. The destruction or degradation of this habitat would reduce the viability of populations, even if the animals were otherwise protected.

On October 4, 1994 (59 FR 50557), we announced a 90-day finding that the petition presented substantial information indicating that the requested action may be warranted. That notice also initiated a status review of the koala. On February 15, 1995 (60 FR 8620), we reopened the comment period on the status review until April 1, 1995. We sent a telegram to the U.S. embassy in Australia, asking that appropriate authorities be notified and asked to comment. We also presented the review directly to numerous concerned organizations and authorities. Of the approximately 400 responses received, the great majority were brief messages in support of listing, but several responses were from persons or organizations providing substantive comments based on firsthand knowledge of the situation.

On September 22, 1998 (63 FR 50547), we proposed the koala as threatened throughout its range, and we sought public comments. We received over 3,000 responses: The vast majority were cards with a printed message endorsing the comments of the International Wildlife Coalition and supporting threatened status for the koala, but personal letters also expressed support for listing the species. We also received letters with substantive comments on the proposal from persons with direct knowledge of koala biology; many of those comments came from persons or groups who had offered opinions and information on earlier notices. We also sought information from scientists on a number of outstanding issues.

All of the Australian Federal and State authorities that commented on the proposal opposed it. They were joined by three other respondents, including two who represented zoological associations in Australia and the United States.

Dr. Colin Griffiths, Director of National Parks and Wildlife, submitted comments for Environment Australia, the agency responsible for koala policy on the national level. He stated that the Australian Government continues to object to our proposal to list the koala as a threatened species under U.S. law. Noting that, under the Endangered Species Protection Act 1992 (ESPA) no trade in koalas or koala products is permitted, Dr. Griffiths said “we have yet to see any explanation of how the listing of the koala in the United States would contribute to koala conservation.” The submission also stated that the Endangered Species Scientific Subcommittee established under the ESPA has evaluated nominations of the koala both under “species that are endangered” and “species that are vulnerable.” In each instance, the subcommittee concluded that the koala did not meet the criteria for listing at a national level.

We fully understand the view of the Australian Government on the status of a species that is native only within its boundaries, particularly where only an occasional zoo acquisition leaves the country. However, our Endangered Species Act (ESA) is international in scope, and we are compelled by law to evaluate petitions of species beyond U.S. boundaries.

Dr. Griffiths made the point that the Australian Government has taken a number of steps in koala conservation since the listing proposal came to us in 1994. A scientific advisory board has reported to the Minister of Environment that the species is relatively abundant and widespread nationally and not likely to become endangered within the next 25 years. In 1998, the legislation of the Commonwealth and the States protecting koalas was integrated into the National Koala Conservation Strategy. The Strategy was developed by the Australian and New Zealand Environment and Conservation Council and was included with the comments submitted by Environment Australia.

Finally, the submission made the objection raised by several others on the listing proposal: Australians particularly object to a rule in which we classify the species as threatened throughout its range rather than assess whether the koala warrants this classification in each State. While the ESA does not allow us to differentiate vertebrate populations solely on state or provincial boundaries (whereas we can on national boundaries), it does allow us to make these distinctions when significant biological differences exist between the populations. The issue that predominates is whether the three subspecies that have been described for koalas represent distinct vertebrate population segments.

Mr. Allan Holmes, Director of National Parks and Wildlife for the Department of Environment, Heritage and Aboriginal Affairs of South Australia, also made the point that the status of the koala varies regionally, and it is not considered nationally endangered or vulnerable. Koalas in South Australia are protected under the National Parks and Wildlife Act 1972 and are listed as rare under Schedule 9. In providing a history of koala management in the State, Mr. Holmes maintained that the classification as rare is misleading as the koala population in South Australia was at the western edge of its range even prior to European settlement. By 1930, the koala was considered extinct in South Australia, and, as a consequence, a population was established on Kangaroo Island and subsequently at other sites on the mainland. Koala habitat is patchy in South Australia, largely due to forest fragmentation caused by 150 years of agricultural development. Koalas introduced to these patches have established populations and have frequently exceeded carrying-capacity with consequent damage to food trees. The letter affirmed the commitment of the Government of South Australia to ensuring that koalas are conserved in the State and that they are managed in such a way that will sustain them and their habitat. Mr. Holmes concluded that the current situation in South Australia with local overpopulation and genetic founder effects illustrates that the threats to koalas are different across Australia and that a single classification may not best serve conservation efforts for the species.

Mr. Michael Taylor, Secretary of the Department of Natural Resources and Environment for the State of Victoria, said that the status of the species has continuously improved from the 1920s when it was probably endangered, to its current status as a widespread and common species. The koala is protected wildlife under the provisions of Victoria's Wildlife Act 1975, which protects all indigenous terrestrial vertebrates, and the Flora and Fauna Guarantee Act 1998, which seeks to insure that species not only survive but retain their evolutionary potential in the wild. Under the provisions of that law, any person or group can nominate a species for listing, and it will be assessed by an independent Scientific Advisory Committee. Victoria's submission noted that, while 359 taxa have been nominated, the koala has not been one of them. Moreover, the government of Victoria has subjected all of its native vertebrates to the World Conservation Union criteria (IUCN, 1994), and, while over 200 taxa were listed as threatened at some level, the koala did not meet the criteria.

The submission provides a history of koala management in Victoria, documenting translocations by decade, as well as an assessment of the current distribution of koalas in the State. While densities of koalas vary widely, those that exceed three to four animals per hectare frequently result in overbrowsing. The results provided for 3 sites indicate a density of 1 koala per hectare is not uncommon, and extrapolation to the “broad vegetation types utilized by koala in Victoria” gives a total population estimate of 52,000 animals in the State of Victoria alone.

Mr. Taylor presented the specific actions that Victoria has taken in recent years to protect koalas and their habitat. Victoria's Biodiversity Strategy calls for a reversal in the decline of native vegetation with a goal of no net loss by 2001. The Planning and Environment Act of 1987 includes the objective to assist the protection of biodiversity, and the Land for Wildlife Program provides mechanisms to conserve areas of environmental significance. The view of the Department of Natural Resources and Environment is that Victoria has a strong viable koala population in the wild, and thus listing would only divert attention from the species that are under threat.

Mr. Brian Gilligan, Director General of the New South Wales National Parks and Wildlife Service, wrote that the population there is intermediate in physical size between the larger southern koalas in Victoria and South Australia and the smaller northern koalas in Queensland. The population in New South Wales was decimated by hunting until it was estimated to contain only 1,000 koalas by 1920. Researchers believed the population had recovered to 5,000-10,000 koalas by the 1970s. The koala was listed as vulnerable under the New South Wales Endangered Fauna Act 1991 and more recently has the protection of threatened species and the Threatened Species Conservation (TSC) Act 1995, which replaced the earlier law. Because the koala is an ecological specialist, it is vulnerable to local extinctions. The letter details several steps that New South Wales has taken to help koala recovery in the State. Under the State Environmental Planning Policy 1995, a detailed habitat assessment is required before approving development of greater than 1 hectare in local government areas where koalas are known to exist. As required of any vulnerable species, the TSC Act requires the National Parks and Wildlife Service to prepare a recovery plan within 10 years. Also, the New South Wales government has begun creating forest reserves under the Regional Forest Agreements (RFAs). The State government has reserved 600,000 hectares so far, and, by their assessment, a large proportion of this land is koala habitat.

Mr. Greg Gordon of Queensland National Parks and Wildlife Service qualified his earlier comments in the proposed rule, that koalas could become vulnerable in the future. “I would see this as a long-term possibility only, as a result of continuing land clearing, assuming clearing is unchecked. It is difficult to put a time frame on this but I would think it would be many decades away, e.g. 50-100 years.” Gordon wrote that the main problem is that most koala sites have poor habitat protection as they occur on privately managed land, which may be at risk of partial or total clearing at some time in the future. He added that in Queensland conservation measures for private lands are being developed, and more effective habitat protection is likely to be available in the medium term.

Mr. Mark S. Canty submitted a letter opposing the proposal. He contrasted the national system of “Landcare” groups that have been forming in Australia, with the RFAs being set up by the government with the goal of preserving 15 percent of forest types that existed in Australia prior to 1750. Mr. Canty said that the result of these preservation targets has been an increase in areas being cleared by landholders to avert government decrees, and he expressed his concern that listing the koala would have the same negative impact, with landholders not reporting koala sightings for fear of being told how to manage their property. Mr. Canty expressed the view that agriculture and housing developments represent a greater threat to koalas than forestry practices. We fully understand this viewpoint, and we are aware that even the perception of imposed solutions stimulated by those living far from the effected land can have a counterproductive effect. Nothing in this listing in any way limits or directs specific measures in Australia for the benefit of koala conservation, on either the State or the Federal level.

Ms. Christine Hopkins, Executive Director of the Australian Regional Association of Zoological Parks and Aquaria (ARAZPA), provided valuable information related to the koala from the international to the state level. The summary of status and legislation was developed by the Monotreme & Marsupial Taxon Advisory Group. Convener Gary Stator said that the Taxon Advisory Group could see no basis to list the species as endangered, and Ms. Hopkins said the ARAZPA could find no evidence in support of listing the species as threatened.

Senior officials at the American Zoological Association (AZA) have modified the position stated in the previous submission of the AZA. Ms. Kristin Vehrs, Dr. Michael Hutchins, and Mr. Robert Howarth maintain that the data provided fail to meet the listing criteria under the Act, specifically that the species is threatened throughout its entire range. While acknowledging that certain koala populations in New South Wales and Queensland continue to be threatened, studies conducted in Victoria and South Australia suggest that the koala has begun to reestablish itself there. AZA stated that while some areas may meet the habitat loss criterion for listing, none currently meet the overutilization criterion in this instance. They conclude that no commercial exploitation occurs, and the few koalas going to zoos for research and educational display do so under permits with conditions that are highly restrictive. AZA notes that while habitat loss has been extensive, the Commonwealth and each State have their own management plans to reverse that trend. We concur with the AZA comments that koalas do not face the same magnitude of threats throughout Australia. The criteria for a threatened species, however, is one that is likely to become endangered throughout all or a significant portion of its range.

Ms. Valerie Thompson, North American Koala Population Manager for the AZA, expressed support for listing the koala as threatened. She based her view on field expeditions mapping koala habitat in conjunction with the Australia Koala Foundation. She also submitted letters from other AZA member institutions, responses to a packet of information on the listing that she had sent out as an Executive Committee member of the Marsupial and Monotreme Taxon Advisory Group. She concluded the AZA did not have a consensus on the koala listing and included letters from institutions and scientists in which nine favored listing, four opposed, and two abstained. The letters included with Ms. Thompson's submission reflected divergent views of the status of koala within the zoo community in the United States, as was evident from the submissions of the scientists in Australia. To list a species, we must determine it meets the criteria based on information from scientists surveying koalas and their habitat.

Mr. Michael Kennedy, Director of Humane Society International (HSI), reiterated support for the listing of the koala as threatened. He stated that habitat clearance, particularly in the States of New South Wales and Queensland, is the greatest threat to koala survival. HSI reviewed the legislative actions taken since the previous comment period. Nominations were submitted under the national ESPA 1992 to list the koala as “vulnerable” and “endangered” by different conservation groups; both of these nominations were denied, though some of the scientists evaluating the proposals favored them. In New South Wales, where four koala populations were nominated as “endangered” under the New South Wales TSC Act, 1995, HSI noted that only one of the nominations was successful. In 1996, the Australian Government published the first National State of the Environment Australia. The document concluded that the “greatest pressures on biodiversity come from demands on natural resources by increasing populations of humans, their affluence and their technology.* * * Habitat modification, has been and remains, the most significant cause of loss of biodiversity.” The HSI letter stated that the Endangered Species Scientific Subcommittee (ESSS) recommended that vegetation clearance be recognized as a key threatening process as nominated by HSI. The Federal Minister for the Environment rejected the ESSS recommendation on legal but not biological grounds.

Ms. Deborah Tarbart, Executive Director of the Australia Koala Foundation (AKF), provided additional information on behalf of the foundation supporting the listing of the koala. The AKF has been actively adding areas to the Koala Habitat Atlas, and three of those areas were included as appendices with the submission. They demonstrate that a small percentage of primary koala habitat remains in particular areas that are associated with koalas. The AKF believes that overpopulation of koalas in some areas of Victoria and South Australia misdirects the debate, as they are atypical populations in isolated habitats.

The AKF submission also included papers on population trends and genetics of koalas presented at the Society for Conservation Biology meeting in Sydney, Australia, in 1998, and submitted for publication in the journal of that society. “Population trends and the conservation debate—issues affecting the conservation of koalas ( Phascolarctos cinereus ) in Australia” (Phillips 1998) provides demographic trends over several decades in three koala populations. Studies use different assessment methods; a covariance analysis shows that any differences in the slope of decline in the three areas are statistically not significantly different. The paper concludes that, because of the uncertainty inherent in population estimates and demographic trends, precautionary principles should be applied in conferring conservation status to species such as the koala.

The AKF appendixes also include an abstract and an unpublished review of koala genetics that have particular pertinence in determining whether State populations can be considered valid subspecies. They suggest that the view of koala subspecies is changing with new molecular data, and that information was important in the later discussion of subspecies as significant vertebrate population segments. The genetics review also provided a better understanding of the chlamydia that affects most koala populations. DNA analysis showed that the chlamydia species infecting koalas most commonly is Chlamydia pecorum , which also causes infections in domestic livestock (Glassick et al. 1966).

Ms. Julie Zyzniewski, President of the Koala Council in Queensland, wrote that, while the State and local governments have adopted some measures to stabilize the population in southeast Queensland, habitat destruction in the rest of the State and elsewhere in Australia had worsened. The Koala Council therefore strongly supports listing in the belief that it will provide moral support for community-based organizations such as the Koala Council.

Ms. Donna Hart and Dr. Ron Orenstein of the International Wildlife Coalition, based in the United States and Canada, reiterated their support of the listing. They maintained that the decline in eucalyptus-dominated woodland in southeastern Australia continues, and the policies of the many Australian jurisdictions appear to be aimed at accelerating this decline rather than halting it. As this is not true of all areas, IWC would favor a State-by-State listing.

Dr. Frank N. Carrick of the University of Queensland makes several points in support of the listing proposal. Queensland is the only State where the koala can be “considered to approach a natural condition in terms of number, distributional range and genetic and demographic integrity.” The State also has one of the world's highest rates of clearing of native vegetation. Moreover, the riparian or coastal and lower altitude forests favored by koalas are the forests most extensively destroyed and fragmented for agriculture, grazing, intensive forestry, and residential development. The high-density koala population in southeastern Queensland—which Dr. Carrick sees as having a vital role in the survival of the species over evolutionary time—is the area of fastest human population growth in Australia. As for the ability of government regulation to reverse these trends, Dr. Carrick expressed the view that the Queensland Nature Conservation Act has inherent deficiencies that have resulted in the downgrading of the classification of the koala from “permanently protected” to the “common fauna” category.

We concur that the State with the most robust koala population in Australia also has the population at most serious risk. While we recognize that the Queensland government has enacted a State Planning Policy (SPP1/95) to control land allocation processes that are threatening koala populations, it will take years of monitoring to determine whether the Policy has been effective and the trend has been reversed in Queensland.

Dr. Tony Norton, Royal Melbourne Institute of Technology, commented primarily on the forestry assessments that have been undertaken since the proposed listing. These assessments will serve as a basis for setting new guidelines for land allocation, forest management, and forestry sawlog and woodchip quotas over the next 20 years. Dr. Norton found that none of the assessments that have been completed so far have delivered their intended goals of a world class forest conservation reserve system or world class forest management practices and concludes that the habitat of the koala in the wild is endangered. He therefore reasserted his support for the listing to force Australian governments to meet both national and international commitments from the preservation of the country's biodiversity.

Mr. Robert Bertram of the South East Forests Conservation Council provided thorough documentation of the demise of the koala population in one part of New South Wales. At present 39 percent of the high-quality koala habitat in the area is reserved in National Parks, and resource agreements prevent reducing the intensity of current logging operations in the remainder of the quality habitat. Claiming that the government has demonstrated disregard for the known science and the precautionary principle in making land-use decisions, the Council gave its view that the situation of the koala in the region and across New South Wales on public land is uncertain at best.

Mr. D.J. Schubert writing on behalf of the original petitioners (AFA and FFA) expressed frustration with the delay in publishing the proposed rule from the petition submitted in May 1994. The AFA and FFA contend that conditions have only declined further since their earlier comments and that the koala now merits endangered status throughout its range. They concur with other comments that most of the habitat destruction is the result of timber, agriculture, mining, and development. Most of the clearing of eucalypt forests is for the export woodchip markets. The submission also points out that the Australian Government has redefined the forest to include woodlands, plantations, and other areas not regarded as native forest. The effect has been to increase the amount of land considered forest in Australia from 41 to 157 million hectares (Dovers et al. 1996). The AFA-FFA submission documents the development of the RFAs in Victoria, where the process has proceeded faster than in other States, and maintains that the new assessment provides “virtually no benefit” for the koala and its habitat. Given the specificity of the food and habitat requirements of the koala, inclusion of additional areas as RFAs may give an artificially high estimate of the land area that constitutes potential koala habitat.

This question is one that people asked in letters from the Government of Australia as well as the States within the country. As the koala does not naturally cross national boundaries and is not in legal international commercial trade, why should we take the considerable time to consider the species as threatened?

The ESA is not restricted to species native to the United States, or those subject to international trade. The Act considers national boundaries, but makes that consideration secondary to the concern for the survival of species. The Act obligates us to make a determination in response to a petition.

As for the priority of such foreign species, with so many other important priorities in international wildlife conservation, we have proceeded deliberately with the listing process, sometimes to the dismay of the petitioners. We have found that, during listing consideration, with its requirements for public comment and consideration of those comments in developing a final decision, sometimes important strides have been made by the countries in the conservation measures that have been developed or enforced. In such cases, the ESA provides an important conservation benefit.

While no agreement exists on an estimate of the number of koalas in Australia, most scientists concur that the species is still widespread. Neither the petitioners nor the Australian Nature Conservation Agency (Phillips 1990) attempted to provide a total estimate of current koala numbers in Australia. Other parties have suggested overall numbers ranging from about 40,000 to 400,000, with the Australian Koala Foundation supporting the lower figure. In their comments on the petition, Drs. Martin and Handasyde indicated that there probably are tens of thousands of koalas at each of several study sites in Victoria alone.

As we pointed out in the proposed rule, the actual number of koalas that were present at various times in the past and that may still exist is of much interest and helps to give some perspective but, as for many species, may not be the critical factor in determining whether the species is threatened. A low figure may reflect natural rarity of a population in marginal habitats. A high figure may be misleading if the entire habitat of the involved population faces imminent destruction.

In this instance, a significant amount of the remaining koala habitat will be lost in the near future if the current trend of land clearance is not reversed. As koalas still exist in many of these areas, if land use measures are carried out to preserve the habitat that supports koalas and many other species, robust populations can be maintained. Such land use policies have been proposed in some States.

We recognize the objections of the Australian Government, Australian State governments, and others to a blanket listing of the koala throughout its range. In the proposed rule, we stated that, if we received strong biological arguments, we would consider giving separate consideration to particular populations. It should be recognized, however, that koalas cannot be considered separate populations solely because they reside in different State jurisdictions.

Our February 7, 1996, Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act (61 FR 4722) establishes that, while international government boundaries with differences in management do qualify as discrete populations, political boundaries within countries do not. We do not specify significant populations solely by State in the United States, and we cannot do this in Australia.

However, three subspecies of koalas are currently recognized based on morphological differences in skins and skulls. The koala in northern Queensland ( Phascolarctos cinereus adustus ) is described as smaller and having a more reddish fur than the animals from New South Wales ( P.c. cinereus ), while the subspecies native to Victoria and South Australia ( P.c. victor ) is larger than the koalas of New South Wales, with a more uniformly brown coat color. The subspecies boundaries have been equated with the State borders, although there are no major geographical barriers separating the States of Queensland, New South Wales and Victoria. Scientists suggest that these differences represent variation along a cline and reflect adaptation to climate differences over the extensive range of the species. (Lee and Martin, 1988). What was necessary in this case was to determine whether these subspecies represent evolutionarily significant units—a geographically discrete set of historical populations (Ryder, 1986) that coincided with state borders.

Our Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act (61 FR 4722) requires that a population meet the dual criteria of discreteness and significance. In evaluating whether the koala subspecies meet the discreteness criterion, we reviewed a recently published study in which Australian scientists addressed this question (Houlden et al. 1999). A recent study of koala mitochondrial DNA from 200 koalas in 16 populations across their range showed that, while there are significant differences between local populations, those differences are not reflected in further differentiation consistent with the current subspecies designations. The authors conclude: “There was no support for a delineation between the P.c. cinereus and the P.c. victor subspecies. In addition, there is evidence to the contrary for the delineation between the P.c. adustus and P.c. cinereus at the Queensland /New South Wales border.”

This conclusion is supported by recent genetic analyses of captive koalas as well (Takami, 1998). The current subspecies, dividing populations at State borders, do not constitute evolutionarily significant units nor do they meet the criteria for discrete vertebrate population segments.

While using the subspecies taxonomy may have been expedient, given the difference in management between States, we agree with views expressed by the scientists in Australia that “clearly the existing subspecific taxonomic classification of koalas may not adequately reflect actual levels of genetic diversity, and conservation priorities set on the basis of the currently recognized subspecies may be deficient” (Sherwin et al. 1998). Therefore, we cannot separate koala subspecies into distinct vertebrate population segments for purposes of listing under the Act.

Section 4(a)(1) of the ESA 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 endangered or threatened due to one or more of the following factors described in section 4(a)(1). These factors and their application to the koala ( Phascolarctos cinereus ) are as follows.

The known historical range of the koala covered an extensive band of forest and woodland in eastern and central Queensland, eastern New South Wales, most of Victoria, and extreme southeastern South Australia. The government, the petitioners, and independent scientific authorities agree that the primary cause of the decline of the koala is destruction of its habitat. This situation is exacerbated by the species' high degree of specialization. Koalas favor particular species of eucalyptus, and populations tend to be concentrated at certain favorable sites. The reproductive rate is relatively low, the maturity rate is slow, and many of the young must disperse.

With human disruption of suitable eucalyptus forests and woodlands, the koala has disappeared from much of its original range. In designating the koala as “potentially vulnerable,” the IUCN/SSC Australasian Marsupial and Monotreme Specialist Group noted that the geographic range of the species had declined by 50 to 90 percent (Kennedy 1992).

A publication of the Australian Nature Conservation Agency (Phillips 1990) contains the following statement: “The expansive forests where koalas once lived * * * have largely gone and those which remain are rapidly disappearing to make way for the needs of human society.” The publication cited a 1984 report by the Australian Commonwealth Scientific and Industrial Research Organization (CSIRO) indicating that the total area of medium-to-tall trees in the four States inhabited by the koala is estimated to originally have been just over 1,230,000 square kilometers (km 2 ) [475,000 square miles (mi 2 )], but that just over half of those forests, 670,000 km 2 (259,000 mi 2 ), had been removed or severely modified.

The petitioners and several of those who commented provided details on the continued habitat loss and modification. This problem is caused mainly by commercial logging, clearing for agriculture and urbanization, as well as disease and extensive dieback of the trees on which the koala depends. The problem is not only removal of the large eucalyptus trees used for food and shelter, but also elimination of vegetated dispersal routes, erosion, siltation of water sources, fragmentation through development of road networks, and other factors detrimental to maintenance of viable koala populations. Based on data compiled in the same 1984 CSIRO report cited above, the petitioners calculated the loss of forest during the past 200 years at 43-52 percent in Queensland, 60-80 percent in New South Wales, 59-75 percent in Victoria, and 79-100 percent in South Australia. An additional government report in 1992 estimated that 60 percent of the remaining forests in Australia are composed of eucalyptus, but that only 18 percent of these areas are unmodified by logging.

Subsequent to receipt of the petition, the Australian Department of the Environment, Sport and Territories issued two new pertinent reports (Glanznig 1995; Graetz et al. 1995). These documents indicate that the primary habitat utilized by the koala originally covered as much as 1,400,000 km 2 (540,000 mi 2 ), but that about 890,000 km 2 (340,000 mi 2 ), or approximately 63 percent, now has been cleared or thinned. Those figures may well be excessive, as the koala was not uniformly distributed throughout the involved region and tended to concentrate in certain favorable areas.

In any case, the new reports support the percentages of forest loss cited above for each of the States involved. Perhaps most significantly, such land clearance is not a phenomenon of the past but is continuing and even intensifying. The estimated annual average amount of land cleared in Queensland, New South Wales, and Victoria from 1983 to 1993 was approximately 4,600 km 2 (1,800 mi 2 ). Estimates for some recent years are approximately twice as great. Glanznig (1995) pointed out that the amount of native vegetation cleared in Australia in 1990 was more than half that cleared in Brazilian Amazonia.

Not all of the clearing in Queensland, New South Wales, and Victoria is in koala habitat, and some of the clearing involves reclearing of secondary growth; nonetheless, a 1993 estimate cited by the petitioners indicates that, if the current rate of deforestation continues, Australia's forests would be eliminated in less than 250 years. Much of the forest loss is associated with the production of woodchips, mainly for exportation to paper mills in Japan. Therefore, we find that the koala is threatened in a significant portion of its range due to the present and threatened destruction, modification, and curtailment of its habitat.

Koala populations were devastated by the commercial fur trade. Populations may have fluctuated considerably through the 19th century in association with such factors as disease and the intensity of aboriginal hunting. It does seem evident, however, that in the early 20th century, the number of koalas in Australia was well into the millions. Such a figure is based on the number of koalas killed for the commercial fur market during that period. In some years, the number of koalas taken may have exceeded 2,000,000, and, as late as 1927, 600,000 to 1,000,000 were killed in Queensland alone. This destruction, possibly along with a Chlamydia epidemic (Phillips 1990), may have reduced koala numbers to just a few thousand. Subsequent conservation efforts, termination of the fur trade, and reintroduction apparently led to a partial recovery by the mid-20th century.

Today overutilization is not a problem. Although some animals reportedly are illegally hunted, and a few koalas are exported to zoos for educational purposes, we conclude that overutilization is not a factor threatening the survival of the species.

Experts have been concerned about the effects of the bacterium Chlamydia, which is known to occur in most koala populations. This disease-causing organism manifests itself in several ways, but especially through infections of the eyes and urinary tract. It apparently has long been associated with the koala and may have been responsible for devastating epidemics in the late 19th and early 20th centuries (Phillips 1990). Genetics research has shown that at least two species of Chlamydia infect koalas (Glassick et al. 1996). Chlamydia pecorum causes most of the reproductive tract disease in koalas, and this species also causes infections in domestic livestock (Jackson et al. 1997). The adverse effects of the disease are intensified through the stress caused by habitat loss and fragmentation. Chlamydia is widespread in mainland koala populations and evidently was responsible for recent declines at some localities, but it is not claimed to be an immediate threat to the overall survival of the species. In some areas, introduced koala populations that are Chlamydia -free show a higher reproductive rate requiring management to avoid overbrowsing of critical tree species. The koala is also subject to various other diseases and, particularly in areas of rapid development, is subject to predation and harassment by domestic dogs and other introduced animals. While disease and predation are exacerbating factors, they would not, in the absence of other factors, cause any koala population to be threatened.

Although State laws generally protect the koala from direct taking and commercial utilization, much of the petitioners' argument is based on a lack of regulatory mechanisms that adequately protect the habitat of the species. Although a significant portion of the koala's remaining habitat is on government land, such ownership does not preclude logging and other modification. Researchers have particular concern that deforestation for the woodchip market is proceeding without proper assessment of environmental impacts. Even if such impacts were taken into account, the petitioners argue the welfare of the koala would not be given adequate attention because the species is not listed pursuant to Australia's ESPA. We can look at the situation of the koala in each State to determine the adequacy of the current regulations.

Though the koalas of Queensland are the smallest in size, the State has the largest koala population, and the most remaining koala habitat of the States. Queensland also has one of the highest rates of clearing of native vegetation. Under the National Forestry Policy, the rate of clearfelling continues to be high on private lands. According to the 1996 assessment of the Australian and New Zealand Environment and Conservation Research Council, the koala population is stable in some areas, thinly scattered in many others, and in steep decline in some coastal areas. A consensus exists that the population overall is declining at different rates depending largely on the degree of development. The situation is particularly critical in southeast Queensland, where urbanization threatens the still substantial koala population. Despite legislation that includes the Nature Conservation Act 1992 and the State Planning Policy 1995, the major threat is poor habitat protection for most of the koala population.

In New South Wales, koalas were once abundant throughout the eastern half of the State and driven to near extirpation by the 1920s. The State government estimates that the population recovered to 5,000-10,000 by the 1970s, with the largest and most secure population in the northwest part of the State. The State government also is concerned that continued habitat fragmentation could lead to local extinctions. For that reason, the koala was listed as a vulnerable species under the NSW Endangered Fauna (Interim Protection) Act, 1991. When that law was replaced by the Threatened Species Conservation Act, 1995, the koala continued to be designated as vulnerable by the independent Scientific Committee created with the new legislation. The New South Wales Scientific Committee recently decided that the Hawks Nest and Tea Gardens koalas meet the criteria of an endangered population.

Koalas are native to the Australia Capital Territory, although they were very rare by 1901. Currently the population is small and likely the descendants of several introductions from Victoria. Almost all of the koalas in Victoria represent the success of reintroduction efforts, as the species was extirpated in the State by the early 1900s, with the exception of three remnant populations (Lewis, 1934). Koalas were introduced to Phillip and French Islands by the 1890s, and it is from translocations of these populations, which began to overcrowd their island habitats, that the present population largely descends.

As reported in the review of previous comments, substantial disagreement exists on the actual numbers of koalas and their densities in some sites where they are abundant. In their submission, the Department of Natural Resources and Environment reports that population censuses indicate that densities of 0.5-1 animal per ha are not uncommon, and they supported that contention with recent data from three sites where over-browsing is occurring. The Department has recently conducted statewide vegetation mapping and concluded that although 60 percent of koala habitat has been lost since European settlement, 5.2 million ha remain. If there is 1 koala per 100 ha in these habitats, the Department estimates a total population of at least 52,000 koalas.

There has been criticism of this extrapolation approach to koala population estimation, particularly as they assume habitat homogeneity over broad geographic areas. (Phillips, 1998). The AKF submission specifically cites the Strathbogie Ranges in Victoria to illustrate the high degree of uncertainty associated with the koala population estimation. Using an alternative estimation method of modeling population growth, Phillips (1998) gives an estimate of 5,000 for the area, an order magnitude lower than earlier estimates (Martin submitted to USFWS 1995).

We cannot resolve the wide discrepancy in estimates of the koalas in Victoria, and the underlying assumption of the carrying capacity of certain habitat type in the State. We do recognize that a continuous translocation program, while necessary to avoid ecological degradation of some plant communities, is not the best solution. The government of Victoria recognizes this as well and is taking further steps in its Biodiversity Strategy to reverse the decline of native vegetation by 2001. Victoria has managed its koala population to relative stability, albeit through intensive management.

At the time of European settlement, koalas occurred only in southeast South Australia, and by the 1930s they were considered extinct in the State. South Australia's present koala population is primarily in five localities and is the result of introductions from other States in Australia. Because these introductions come from disparate provenances and are relatively recent, the population in South Australia should not be considered a single subspecies. The population in the southeast of the State, the area where there were koalas at the time of European settlement, is the least stable, and additional reintroductions are planned. In contrast, on Kangaroo Island high koala density has led to the sustained overbrowsing on preferred food species. In 1998, 2,500 koalas on Kangaroo Island were sterilized and 850 were relocated to the southeast part of the State.

Land use practices vary enormously in different States, and they are currently undergoing evaluation and change in many jurisdictions. We conclude that the inadequacy of present regulations over a significant portion of the species' range is a factor in designating the koala as threatened.

The petition and other sources indicate a number of additional problems confronting the koala. Perhaps most important from a long-term perspective is a loss of genetic variation resulting from fragmentation of habitat. Koalas show low levels of variation as measured at the protein and DNA levels. The genetic differentiation of isolated koala populations is becoming apparent, and in combination with high site philopatry and the species response to translocation, greatly increases the likelihood of inbreeding. This problem is further extenuated in populations that were founded from koalas that were maintained in a semi-natural environment on offshore islands. Lack of genetic variability could increase susceptibility to disease and other problems, particularly those resulting from rapidly changing Australian environments. Additional factors such as the increase in wildfires, attacks by domestic dogs, and automobile accidents all pose secondary threats that are the outcome of koala habitat decline.

Although habitat loss was a crucial factor in the determination that the koala is threatened, specific critical habitat is not being proposed, as its designation is not applicable to foreign species.

Conservation measures provided to species listed as endangered or threatened under the ESA include recognition, international cooperation, recovery actions, requirements for Federal protection, and prohibitions against certain activities. Recognition through listing encourages conservation measures by Federal, international, and private agencies, groups, and individuals.

Section 7(a) of the Act, as amended, and as implemented by regulations at 50 CFR part 402, requires Federal agencies to evaluate their actions that are to be conducted within the United States or on the high seas with respect to any species that is proposed or listed as endangered or threatened and with respect to its proposed or designated critical habitat (if any). Section 7(a)(2) requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of a listed species or to destroy or adversely modify its critical habitat. If a proposed Federal action may affect a listed species, the responsible Federal agency must enter into formal consultation with the Service. We are not aware of such actions with respect to the species covered by this proposal, except as may apply to importation permit procedures.

Section 8(a) of the Act authorizes the provision of limited financial assistance for the development and management of programs that the Secretary of the Interior determines to be necessary or useful for the conservation of endangered and threatened species in foreign countries. Sections 8(b) and 8(c) of the Act authorize the Secretary to encourage conservation programs for foreign endangered and threatened species and to provide assistance for such programs in the form of personnel and the training of personnel.

Section 9 of the Act, and implementing regulations found at 50 CFR 17.21 and 17.31, set forth a series of 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, import or export, ship in interstate commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any threatened wildlife. It also is illegal to possess, sell, deliver, transport, or ship any such wildlife that has been taken in violation of the Act. Certain exceptions apply to agents of the Service and State conservation agencies.

We may issue permits to carry out otherwise prohibited activities involving endangered and threatened wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22, 17.23, and 17.32. Permits are available for scientific purposes, to enhance propagation or survival, or for incidental take in connection with otherwise lawful activities. These permits must also be consistent with the purposes and policy of the Act as required by Section 10(d). For threatened species, we may also issue permits for zoological exhibition, educational purposes, or special purposes consistent with the purposes of the Act.

Our policy, published in the Federal Register on July 1, 1994 (59 FR 34272), is to identify to the maximum extent practicable at the time a species is listed those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effects of this listing on proposed or ongoing activities involving the species. Importations into and exportations from the United States, and interstate and foreign commerce, of koalas (including tissues, parts, and products) from New South Wales and Queensland without a threatened species permit would be prohibited. Koalas removed from the wild or born in captivity prior to the date the species is listed under the Act would be considered “pre-Act” and would not require permits unless they enter commerce. When a specimen is sold or offered for sale, it loses its pre-Act status. Currently, 10 zoological institutions in the United States hold koalas. You can direct questions regarding permit requirements for U.S. activities to the Office of Management Authority, 4401 N. Fairfax Drive, Room 700, Arlington, Virginia 22203 (1-800-358-2104).

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

This rule does not require collection of information that requires approval by the Office of Management and Budget under 44 U.S.C. 3501 et seq. An information collection related to the rule pertaining to permits for endangered and threatened species has OMB approval and is assigned clearance number 1018-0094. 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. This rule does not alter that information collection requirement.