Under the Federal Register Act (44 U.S.C. Chapter 15), the Administrative Committee of the Federal Register is responsible for establishing the prices charged for Federal Register publications. Federal Register publications are sold and distributed to the public by the Government Printing Office's (GPO) Superintendent of Documents. The Administrative Committee periodically reviews data submitted by the Superintendent of Documents to determine whether subscription rates and single copy prices of Federal Register publications produce sufficient revenue to keep pace with GPO's printing, handling and distribution costs, as well as postal rate increases. GPO receives no appropriation for any of the costs associated with producing Federal Register publications. Sales revenue must support the cost of the sales program. The proposed price increases would enable the Government Printing Office to recover more of the costs of producing and distributing Federal Register publications.

The data submitted by the Superintendent of Documents indicates that sales revenue is insufficient to cover the program costs of certain Federal Register publications. The shortfall in sales revenue is attributable to declining paper subscriptions, increases in GPO employee pay scales and benefits, higher paper prices, and a 12.7 percent increase in postal rates in 2001. This proposed rule takes into account the actual production, handling and distribution costs for paper publications over the past year and projected costs for the remainder of 2001.

The Administrative Committee published its last price change regulation on February 23, 2000 (65 FR 8843). In this action, the Administrative Committee proposes to increase the subscription rates for the paper editions of the daily Federal Register , the Federal Register Index and LSA (List of CFR Sections Affected), the Code of Federal Regulations (CFR), and the Weekly Compilation of Presidential Documents. The single copy price of the daily Federal Register would also increase. The single copy price of the Weekly Compilation of Presidential Documents would remain the same.

Prices for the microfiche editions of the Federal Register and the CFR result from a competitive bidding process. The subscription rates would increase for the microfiche editions of the daily Federal Register and CFR. The single copy price for the microfiche editions of those publications would not change.

GPO has taken aggressive measures to achieve savings in its sales programs, such as reducing full time equivalent employee costs by 29 percent since 1994. However, in addition to the costs already cited, a number of other factors have combined to make it necessary to raise the price of paper publications. Part of the increase can be attributed to the rise in the volume of pages printed per subscription. The number of pages printed for each subscription to the Federal Register has increased by more than 10 percent since 1997 (66,934 pages in 1997 as compared with 77,234 pages in 2000). A sharp decline in the number of paid subscriptions has also contributed to the need for price increases. Since 1994, when the Administrative Committee began providing online access to the Federal Register , subscriptions have fallen by 73 percent. The decline in paper subscription revenue far exceeds the savings realized from reduced production costs. As a result, handling costs must be allocated over a much smaller base of orders, forcing increases in the prices of paper publications.

Subscribers who prefer the convenience of paper publications delivered to their place of business would bear a greater cost burden as a result of these price increases. But our customers also have free online access to Federal Register publications on the GPO Access service (http://www.access.gpo.gov/nara). The online customer base has expanded rapidly since free online service was introduced in late 1995. Information retrievals from the online edition of the Federal Register grew from just under 15 million documents in calendar year 1996 to over 61 million documents downloaded in calendar year 2000. Over the same period, information retrievals from the online edition of the CFR grew from about 725,000 documents to more than 93 million documents downloaded. Online Federal Register publications on GPO Access are now among the most frequently visited Federal web sites.

The success of the online publications demonstrates that the Administrative Committee is fulfilling its mission to provide the public with essential information on the functions, actions, and regulatory requirements of the Federal government. At the same time, the Administrative Committee is constantly engaged in efforts to improve the quality of our online publications, including investments in new technology applications that will enhance e-government services to the public. In addition, GPO recently took new steps to significantly increase server capacity to meet the growing demand for online access to Federal Register publications. For members of the public who prefer to read the printed editions, GPO continues to provide free access to Federal Register publications at Federal depository libraries located throughout the nation under funding provided by Congress.

The changes to subscription prices in this proposal amount to a 9.6 percent increase for the paper edition of the Federal Register and a 9.2 percent increase for the printed CFR. The subscription price of the Weekly Compilation of Presidential Documents would increase by 12 percent. The price changes are reflected in proposed amendments to 1 CFR part 11. The following rates would be effective after the issuance of the final rule. The annual subscription rate for the daily Federal Register paper edition would increase from $638 to $699. For a combined Federal Register , Federal Register Index and LSA (List of CFR Sections Affected) subscription, the rate would increase from $697 to $764. The price of a single copy of the daily Federal Register paper edition would increase from $9 to $10. The annual subscription rate for the microfiche edition of the Federal Register , which includes the Federal Register Index and LSA, would increase from $253 to $264. The annual subscription price for the Federal Register Index increases from $28 to $30. The annual subscription price for the monthly LSA would increase from $31 to $35. The annual subscription rate for a full set of the CFR paper edition would increase from $1094 to $1195. The annual subscription rate for the microfiche edition of the CFR would increase from $290 to $298. The annual subscription rates for the Weekly Compilation of Presidential Documents would increase from $92 to $103 for delivery by non-priority mail and from $151 to $169 for delivery by first-class mail.

The proposed rule has been drafted in accordance with Executive Order 12866, section 1(b), “Principles of Regulation.” The Administrative Committee has determined that this proposed rulemaking is not a significant regulatory action, as defined under section 3(f) of Executive Order 12866.

The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. , does not apply to rate increases necessary to recover the costs to the Government for printing and distributing Federal Register publications. This action would not have a significant impact on small entities since it would not impose any substantive requirements, and any increased costs could be avoided by accessing Federal Register publications through the free GPO Access service on the Internet or at a Federal depository library.

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

For the reasons discussed in the preamble, the Administrative Committee of the Federal Register proposes to amend part 11 of chapter I of title 1 of the Code of Federal Regulations as set forth below:

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 99-NE-39-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, New England Region, Office of the Regional Counsel, Attention: Rules Docket No. 99-NE-39-AD, 12 New England Executive Park, Burlington, MA 01803-5299.

On December 29, 1999, the FAA issued AD 99-27-16, Amendment 39-11497 (65 FR 691, January 6, 2000), to require a one-time visual inspection of 72 Stage 2 HPT aft cooling plates for nicks, dents, raised metal, and scratches. If any nicks, dents, raised metal, or scratches were found, that AD also required repair of the cooling plates or replacement with serviceable parts. That action was prompted by reports of Stage 2 HPT aft cooling plates that were dented during the assembly of the cooling plate to the Stage 2 disk due to raised metal on the stage 2 HPT disk post aft mating surface. The raised metal condition on the stage 2 HPT disk post was caused by an improperly installed locating pin in the assembly tool. That condition, if not corrected, could result in HPT aft cooling plate failure, which could result in an uncontained engine failure and damage to the airplane. Since AD 99-27-16 was issued, CFE Company has isolated the observed assembly damage to a known replacement of the locating pin in the assembly tooling. It has been determined that only ten of the original 72 HPT cooling plate/stage 2 disk assemblies were assembled before tool correction occurred. Records show these ten HPT cooling plate/stage 2 disk assemblies were subsequently assembled in ten gas generator modules, S/N's 800421-800430. These gas generator modules, along with the engines on which these modules were installed, are listed in this AD.

The FAA has reviewed and approved the technical contents of CFE Company Alert Service Bulletin (ASB) CFE738-A72-8031, Revision 2, dated October 17, 2000, that describes the dimensional inspection procedures for indentation depth on stage 2 HPT aft cooling plates, inspection of the stage 2 HPT rotor disk for raised metal, and the acceptance and repair criteria of the stage 2 HPT aft cooling plate and HPT rotor disk.

Although ASB CFE738-A72-8031, Revision 2, dated October 17, 2000, identifies ten engines by SN, the FAA is also listing the ten gas generator module SN's in which the affected HPT cooling plate/stage 2 HPT disk assemblies are installed. This listing is made to assure that the gas generator modules containing the affected parts are identified and inspected regardless of which engine they are installed on. Gas generator modules may not necessarily stay installed in one and only one engine.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require, on gas generator modules identified by SN, a one-time visual inspection of stage 2 HPT aft cooling plates for nicks, dents, raised metal, and scratches, and if present, replacement with serviceable parts, or, dimensional inspection of indentation depth, repair if indentation is within acceptable limits, and if not, replacement with serviceable parts. This AD would also require inspection of the stage 2 HPT rotor disk post aft surface which mates with the stage 2 HPT aft cooling plate, for raised metal, and, removal of the raised metal, if present, or replacement with a serviceable part. The inspections would be required at the next shop visit after the effective date of this AD where the HPT assembly is sufficiently disassembled to afford access to the stage 2 HPT aft cooling plate, but not later than 4,500 part cycles-since-new (CSN) in accordance with the ASB described previously.

There are approximately ten engines of the affected design in the worldwide fleet. The FAA estimates that nine engines installed on airplanes of US registry would be affected by this proposed AD, that it would take approximately four work hours per engine to accomplish the proposed inspection if the inspection did not take place during scheduled maintenance, and that the average labor rate is $60 per work hour. Required parts would cost approximately $1,536 per engine. Based on these figures, the total cost impact of the proposed AD on US operators is estimated to be $15,484.

This proposed rule does not have federalism implications, as defined in Executive Order 13132, because it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the FAA has not consulted with state authorities prior to publication of this proposed rule.

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

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification (e.g., reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 96-NM-143-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 96-NM-143-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The method of fabrication on Gulfstream Aerospace Corporation Model G-159 airplanes of spotwelding to join two layers of material precludes the use of any corrosion inhibitor on the faying surfaces. Therefore, corrosion can form by the entrance and entrapment of moisture or other corrosive agents between layers of the metal. The FAA has received reports that exfoliation corrosion has been found in the lower layer of the lower wing plank splices. This corrosion typically follows the grain boundaries into the ramp-up area. As a consequence of such corrosion, cracking may occur in the risers adjacent to the splices of the lower wing planks. This action is necessary to detect and correct corrosion of the skin of certain structural assemblies, which could cause local instability failures of the wing under certain load conditions and result in degradation of wing capability.

The FAA has reviewed and approved Gulfstream Customer Bulletin (CB) No. 337, dated December 10, 1993, which describes procedures for certain repetitive non-destructive testing (NDT) inspections to detect corrosion on certain areas (ailerons, elevators, rudder, flaps, horizontal stabilizer, vertical stabilizer, and aft fuselage skins, as well as lower wing plank splices). The CB also describes procedures for replacing components, if necessary. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.

Gulfstream has also issued Gulfstream Tool No. ST905-377, an x-ray negative that is a comparison chart, which describes specific levels of corrosion, and describes criteria for determining those levels of corrosion (“light,” “moderate,” and “severe”).

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the actions specified in the service bulletin described previously, except as discussed below.

Operators should note that the Gulfstream CB recommends that the compliance time for the initital NDT inspections should be 18 months from the release of the CB (December 10, 1993). However, this proposed AD would require the initial inspection within 9 months after the effective date of the AD. Operators also should note that, although the Gulfstream CB does not specify certain corrective actions for levels of corrosion, this proposed AD would require shortened repetitive intervals for the NDT inspections based on certain levels of corrosion, or replacement of the corroded component with a serviceable component.

There are approximately 144 Gulfstream Model G-159 airplanes of the affected design in the worldwide fleet. The FAA estimates that 71 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 80 work hours per airplane to accomplish the proposed actions, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $340,800, or $4,800 per airplane, per inspection cycle.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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

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

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification (e.g., reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 99-NM-290-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 99-NM-290-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

As part of its practice of re-examining all aspects of the service experience of a particular aircraft whenever an accident occurs, the FAA has become aware of instances of smoke emanating from the ballast transformers of the cockpit fluorescent lights on McDonnell Douglas Model DC-9 series airplanes. Investigation revealed that aging fluorescent tubes result in a higher power demand on the ballast transformers, which causes the transformer to overheat. This condition, if not corrected, could result in smoke in the cockpit.

The FAA, in conjunction with Boeing and operators of McDonnell Douglas Model DC-9-10, -20, -30, -40, and -50 series airplanes, and C-9 (military) airplanes, is continuing to review all aspects of the service history of those airplanes to identify potential unsafe conditions and to take appropriate corrective actions. This proposed airworthiness directive (AD) is one of a series of actions identified during that process. The process is continuing and the FAA may consider additional rulemaking actions as further results of the review become available.

The FAA has reviewed and approved McDonnell Douglas Alert Service Bulletin DC9-33A114, dated November 1, 1999. The service bulletin describes procedures for replacing the transformer ballast assembly in the first officer's console with a new, improved ballast assembly. Accomplishment of the action specified in the service bulletin is intended to adequately address the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the action specified in the service bulletin described previously.

There are approximately 836 Model DC-9-10, -20, -30, -40, and -50 series airplanes, and C-9 (military) airplanes of the affected design in the worldwide fleet. The FAA estimates that 543 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 1 work hour per airplane to accomplish the proposed actions, and that the average labor rate is $60 per work hour. Required parts would cost between $1,379 and $1,860 per airplane. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be between $781,377 and $1,042,560, or $1,439 or $1,920 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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

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

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

I. Background on the North Dakota Program.

II. Description of the Proposed Amendment.

III. Public Comment Procedures.

IV. Procedural Determinations.

On December 15, 1980, the Secretary of the Interior conditionally approved the North Dakota program. You can find background information on the North Dakota program, including the Secretary's findings, the disposition of comments, and conditions of approval of the North Dakota program in the December 15, 1980, Federal Register (45 FR 82214). You can also find later actions concerning North Dakota's program and program amendments at 30 CFR 934.15 and 934.30.

By letter dated May 9, 2001, North Dakota sent us a proposed amendment to its program (North Dakota State Program Amendment XXXI, administrative record No. ND-FF-01) under SMCRA (30 U.S.C. 1201 et seq. ). North Dakota sent the amendment to include changes made at its own initiative. The full text of the program amendment is available for you to read at the locations listed above under ADDRESSES.

Specifically, North Dakota proposes very minor changes to that part of its statute dealing with surface coal mining and reclamation operations (North Dakota Century Code 38-14.1). Specifically, the “Superintendent of the State Historical Board” has been changed to the “Director of the State Historical Society.” In addition, the language in this statute was revised to make it plainer and easier to understand, such as deleting “thereby,” “such,” “prior to,” etc.

Under the provisions of 30 CFR 732.17(h), OSM requests your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the North Dakota program.

Send your written comments to OSM at the address given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. In the final rulemaking, we will not necessarily consider or include in the administrative record any comments received after the time indicated under DATES or at locations other than the Casper Field Office.

Please submit Internet comments as an ASCII, WordPerfect, or Word avoiding file the use of special characters and any form of encryption. Please also include “Attn: SPATS No. ND-042-FOR” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Casper Field Office at 307/261-6550.

We will make comments, including names and addresses of respondents, available for public review during normal business hours. We will not consider anonymous comments. If individual respondents request confidentiality, we will honor their request to the extent allowable by law. Individual respondents who wish to withhold their name or address from public review, except for the city or town, must state this prominently at the beginning of their comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public review in their entirety.

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., m.d.t. on June 21, 2001. If you are disabled and need special accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT. We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold the hearing.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at a public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.

If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT. All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES. We will make a written summary of each meeting a part of the administrative record.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulations.

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that, to the extent allowable by law, this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments since each such program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA. Section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a decision on a proposed State regulatory program provision does not constitute a major Federal action within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)). A determination has been made that such decisions are categorically excluded from the NEPA process (516 DM 8.4.A).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The Department of the Interior has determined that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The State submittal that is the subject of this rule is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. Accordingly, this rule will ensure that existing requirements previously promulgated by OSM will be implemented by the State. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, geographic regions, or Federal, State or local governmental agencies; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose a cost of $100 million or more in any given year on any governmental entity or the private sector.

This pilot project assesses the appropriateness of excluding from the RCRA regulatory definition of solid waste the wastewater treatment sludge (designated as F006 Hazardous Waste) generated by one of the two fluoride/heavy metal wastewater treatment plants (the plant designated as B/690 West Complex by IBM) on the IBM East Fishkill facility when the sludge is being used as an ingredient in the manufacture of cement, and to characterize those factors that may determine whether similar sludges should also be excluded from RCRA regulatory controls when recycled in the same manner. This proposed rule is not intended to apply to any other hazardous wastes generated and/or managed at the IBM facility, although wastewater treatment sludge (also designated as F006 Hazardous Waste) generated by the other wastewater treatment plant (the B/386 East Complex) at the facility may become eligible in the future once a Final Project Agreement (or addendum to the current Final Project Agreement) is signed allowing for the additional sludge to be included in this project. This proposed rule does not apply to any wastewater treatment sludges generated at other facilities.

The duration of this XL pilot project is five years. The site-specific conditional exclusion from the definition of solid waste being proposed in today's notice includes a “sunset provision” which will automatically terminate the exclusion 5 years from the effective date of the final rulemaking promulgated to allow for the XL project to be implemented. (A “sunset provision” is typically included in regulatory changes to facilitate XL pilot projects.) Towards the end of the term of this XL project, EPA, the New York State Department of Environmental Conservation (NYSDEC), and IBM will evaluate the success of the pilot project. If the project is determined to be successful, EPA may consider expanding the scope of the exclusion to the national level (by rulemaking). Although EPA does not expect that this XL project by itself can generate all the data that would be necessary on the wide variety of other F006 wastestreams that could potentially be used to make cement to proceed with a national rulemaking, the data generated from this project may be useful in supporting such national-level rulemaking.

Today's proposed rulemaking will not in any way affect the provisions or applicability of any other existing or future regulations.

EPA is soliciting comments on this rulemaking. EPA will publish responses to comments in a subsequent final rule. The XL project will enter the implementation phase when the final rule is promulgated by EPA, and NYSDEC has undertaken appropriate action to allow the project to be implemented. (The Final Project Agreement has already been signed by EPA, NYSDEC, and IBM.)

The terms of the overall XL project are contained in a Final Project Agreement (FPA) which was the subject of a Notice of Availability published in the Federal Register on September 1, 2000 (65 FR 53298) and which was signed by EPA, NYSDEC and IBM on September 29, 2000. The Final Project Agreement (FPA) is available to the public at the EPA Docket in Washington, DC, in the U.S. EPA Region 2 library, at the IBM East Fishkill facility, and on the world wide web at http://www.epa.gov/projectxl/ .

The information presented in this preamble is organized as follows:

EPA is publishing this proposed regulation under the authority of sections 2002, 3001, 3002, 3003, 3006, 3010, and 7004 of the Solid Waste Disposal Act of 1970, as amended by the Resource Conservation and Recovery Act, as amended (42 U.S.C. 6912, 6921, 6922, 6923, 6926, 6930, 6937, 6938, and 6974).

The Final Project Agreement (FPA) sets forth the intentions of EPA, NYSDEC, and the IBM East Fishkill facility in Hopewell Junction, NY with regard to a project developed under Project XL, which is an EPA initiative to allow regulated entities to achieve better environmental results with limited regulatory flexibility. The proposed regulation will allow implementation of the project. Project XL—“eXcellence and Leadership”—was announced on March 16, 1995, as a central part of the National Performance Review and the Agency's effort to reinvent environmental protection. See 60 FR 27282 (May 23, 1995). Project XL provides a limited number of private and public regulated entities an opportunity to develop their own pilot projects to request regulatory flexibility that will result in environmental protection that is superior to what would be achieved through compliance with current and reasonably-anticipated future regulations. These efforts are crucial to EPA's ability to test new strategies that reduce regulatory burden and promote economic growth while achieving better environmental and public health protection. EPA intends to evaluate the results of this and other Project XL projects to determine which specific elements of the project(s), if any, should be more broadly applied to other regulated entities for the benefit of both the economy and the environment.

Under Project XL, participants in four categories—facilities, industry sectors, governmental agencies and communities—are offered the flexibility to develop common sense, cost-effective strategies that will replace or modify specific regulatory requirements, on the condition that they produce and demonstrate superior environmental performance.

The XL program is intended to encourage EPA to experiment with potentially promising regulatory approaches, both to assess whether they provide benefits at the specific facility affected, and whether they should be considered for wider application. Such pilot projects allow EPA to proceed more quickly than would be possible when undertaking changes on a nationwide basis. As part of this experimentation, EPA may try out approaches or legal interpretations that depart from, or are even inconsistent with, longstanding Agency practice, so long as those interpretations are within the broad range of discretion enjoyed by the Agency in interpreting the statutes that it implements. EPA may also modify rules, on a site-specific basis, that represent one of several possible policy approaches within a more general statutory directive, so long as the alternative being used is permissible under the statute.

Adoption of such alternative approaches or interpretations in the context of a given XL project does not, however, signal EPA's willingness to adopt that interpretation as a general matter, even in the context of other XL projects. It would be inconsistent with the forward-looking nature of these pilot projects to adopt such innovative approaches prematurely on a widespread basis without first determining whether they are viable in practice and successful in the particular projects that embody them. Furthermore, as EPA indicated in announcing the XL program, EPA expects to adopt only a limited number of carefully selected projects. These pilot projects are not intended to be a means for piecemeal revision of entire programs. Depending on the results in these projects, EPA may or may not be willing to consider adopting the alternative interpretation again, either generally or for other specific facilities.

EPA believes that adopting alternative policy approaches and interpretations, on a limited, site-specific basis and in connection with a carefully selected pilot project, is consistent with the expectations of Congress about EPA's role in implementing the environmental statutes (provided that the Agency acts within the discretion allowed by the statute). Congress' recognition that there is a need for experimentation and research, as well as ongoing re-evaluation of environmental programs, is reflected in a variety of statutory provisions, such as section 8001 of RCRA.

To participate in Project XL, applicants must develop alternative environmental performance objectives pursuant to eight criteria: superior environmental performance; cost savings and paperwork reduction; stakeholder involvement and support; test of an innovative strategy; transferability; feasibility; identification of monitoring, reporting and evaluation methods; and avoidance of shifting risk burden. To be selected, the XL projects must have the full support of the affected Federal, State, local and tribal agencies.

For more information about the XL criteria, readers should refer to the two descriptive documents published in the Federal Register (60 FR 27282, May 23, 1995 and 62 FR 19872, April 23, 1997), and the December 1, 1995 “Principles for Development of Project XL Final Project Agreements” document. For further discussion as to how the IBM East Fishkill XL project addresses the XL criteria, readers should refer to the Final Project Agreement available from the EPA RCRA docket, the U.S. EPA Region 2 library, or the Project XL web page (see ADDRESSES section of today's preamble).

The Project XL program is compartmentalized into four basic developmental phases: the initial pre-proposal phase where the project sponsor comes up with an innovative concept that they would like EPA to consider as an XL pilot project; the second phase where the project sponsor works with EPA and interested stakeholders in developing an XL proposal; the third phase where EPA, local regulatory agencies, and other interested stakeholders review the XL proposal; and the fourth phase where the project sponsor works with EPA, local regulatory agencies, and interested stakeholders in developing a Final Project Agreement and legal mechanism. After promulgation of the final rule (or other legal mechanism) that provides the flexibility required for the XL pilot project, and after the Final Project Agreement has been signed by all designated parties, the XL pilot project proceeds on to implementation and evaluation.

The Final Project Agreement (FPA) is a written voluntary agreement between the project sponsor and regulatory agencies. The FPA contains a detailed description of the proposed pilot project. It addresses the eight Project XL criteria, and the expectation of the Agency that the XL project will meet those criteria. The FPA identifies performance goals and indicators that track whether the project is yielding the expected environmental benefits, and specifically addresses the manner in which the project is expected to produce superior environmental benefits. The FPA also discusses the administration of the FPA, including dispute resolution and termination. The FPA for this XL project is available for review in the docket for today's action, and is also available on the world wide web at http://www.epa.gov/projectxl/.

EPA is today requesting comments on the proposed rule to implement key provisions of this Project XL initiative. Today's proposed rule would facilitate implementation of the FPA that has been developed by EPA, the New York State Department of Environmental Conservation (NYSDEC), the IBM East Fishkill facility, and other stakeholders. Today's proposed rule, when finalized, would not be effective in New York until the State has made conforming changes (or used other legal mechanisms) to modify its hazardous waste program.

This proposed rule, when finalized, would apply only to the IBM East Fishkill facility in Hopewell Junction, NY. Further, the regulatory modification being proposed is intended to only apply to a portion of the total F006 electroplating sludge generated at the facility (specifically, the sludge designated as B/690 West Complex sludge, which is the subject of the Final Project Agreement (FPA) included in the docket for this proposal). However, it should be noted that IBM expects to implement waste minimization technologies to remove hazardous constituents from the sludge generated at a separate wastewater treatment plant (i.e., the B/386 East Complex), pursue another FPA (or addendum to the current FPA), and include the B/386 East Complex wastewater treatment sludge in this XL pilot project. The regulatory modification being proposed today has been crafted to allow for the future inclusion of the B/386 East Complex sludge in this XL project without an additional rulemaking. A more detailed discussion of the regulatory modification is presented in section III. E. A more detailed discussion of the sludge that is the focus of this XL project is presented in Section III. B. 3.

IBM believes RCRA oversight (and the regulatory requirements such oversight imposes) does not provide an increase in protection of human health and the environment when applied to the recycling scenario involving the use of IBM's wastewater treatment sludge as an ingredient in the production of cement. Rather, IBM believes the RCRA regulatory requirements serve as a disincentive to an otherwise viable and environmentally sound recycling scenario.

On January 4, 1985 the Agency promulgated the basic regulatory definition of solid waste (see 50 FR 614). Under the current RCRA regulatory framework, a hazardous secondary material  1 being recycled may meet the definition of solid waste, depending on the type of secondary material (e.g., spent material, by-product, sludge) and the type of recycling (e.g., reclamation, use as an ingredient, use constituting disposal). (See 40 CFR 261.2.) As provided at 40 CFR 261.2(e)(1)(i), a hazardous secondary material that is used as an ingredient in an industrial process to make a product is excluded from the definition of solid waste. However, 40 CFR 261.2(e)(2)(i) limits the (e)(1)(i) exclusion such that materials used to produce products that are applied to the land are not excluded. As explained in the preamble to the January 4, 1985 rulemaking, RCRA jurisdiction over hazardous secondary materials that are used on the land is based in part on the fact that the environmental impact of such use is basically the same as the environmental impact of conventional land disposal (see 50 FR at 628). Indeed, the potential impact in many cases is worse because there are more potential human environmental exposure pathways for waste-derived products than there are for landfilled wastes (see Association of Battery Recyclers v. EPA, 208 F. 3d. 1047 (D.C. Cir. 2000); 53 FR at 17605 (May 17, 1988)). Also, as a generalization, products that are used on the land are of relatively low value and seldom have product specifications that address the potential presence of hazardous constituents.

Therefore, a hazardous secondary material (such as IBM's F006 wastewater treatment sludge) that is used as a legitimate ingredient to produce cement (presuming that the cement will be used on the land) is subject to regulation as a hazardous waste, including among other things, the need for a Hazardous Waste Manifest (and hazardous waste transporter), and possibly storage permits at the recycling facility (in this case, a cement manufacturer). And, while the waste-derived product (i.e., the cement made using the sludge as an ingredient) is exempt from any further regulatory requirements pursuant to 40 CFR 266.20(b), assuming it meets the applicable treatment standards (which are the same standards the waste would have to meet prior to land disposal), the waste-derived product remains a hazardous waste within RCRA jurisdiction. It is the application of this regulatory framework that IBM believes provides no environmental benefit and serves as a disincentive to an environmentally sound recycling scenario for the sludge that is the focus of today's proposal.

Inherent to the regulatory definition of solid waste as it applies to hazardous secondary materials that are recycled is the concept that the recycling actually be “legitimate recycling” as opposed to “sham recycling,” which is treatment and/or disposal (including disposal through incorporation into a product) of a hazardous secondary material under the guise of recycling (50 FR at 638, January 4, 1985). This determination is not always clear-cut and often involves assessing the intent of the activity by evaluating circumstantial evidence. Basically, the determination rests on whether the secondary material is sufficiently “commodity-like.” This entails an evaluation of whether the material truly has value as a raw material/product and whether the recycling process is likely to release hazardous constituents (or otherwise pose risks to human health and the environment) that are different from or greater than those from the processing of an analogous raw material/product. The criteria used to evaluate whether a secondary material is legitimately being recycled are presented in an April 26, 1989 memorandum from Sylvia K. Lowrance, Director of the Office of Solid Waste, to the Hazardous Waste Management Division Directors in Regions I-X, entitled “F006 Recycling.”  2 The following discussion presents the criteria and EPA's evaluation of the criteria in the context of the recycling scenario that is the focus of this XL project. It should be noted that these criteria are intended to be used as a means of focusing the overall consideration of a specific recycling scenario and are meant to be taken as a whole (which, in effect, means that a negative response to one or more criteria does not necessarily mean that the recycling scenario is a sham).

(1) Is the secondary material similar to an analogous raw material or product?

This is discussed in detail below.

(2) What degree of processing is required to produce a finished product?

The sludge must undergo significant processing to produce a finished product, consistent with the processing the analogous raw materials must undergo to produce cement. No special processing of the sludge is required.

(3) What is the value of the secondary material?

The sludge will likely have a negative monetary value (IBM expects to pay a fee to a cement manufacturer receiving the sludge). However, the Agency acknowledges that the pure economics of a recycling scenario are difficult to gauge because RCRA regulations are a very real factor influencing the economics of such scenarios. If RCRA did not exist, it is quite possible that a cement manufacturer would pay to receive such a high-calcium containing material (comparable to the price paid for analogous raw materials, such as limestone). However, due to the existence of the RCRA regulations which, in effect, impose costs on IBM for the management of the sludge, a cement manufacturer can charge a fee for the sludge (presumably less than the fee charged by a disposal facility), giving the sludge a negative value.

(4) Is there a guaranteed market for the end product?

Cement is a widely available commercial product with a proven market. As the applications for cement vary, so do specifications for the various products required. Customers of cement kilns will continue to demand that their product specifications be met whether or not IBM's sludge is among the raw materials used to manufacture their product. In the FPA for this project, IBM agreed that the cement kiln which recycles its sludge will provide to IBM a certification that the sludge delivered to the kiln (from the IBM East Fishkill facility) was used as an ingredient in the manufacture of cement in accordance with both product specifications and generally accepted cement industry standards. Accordingly, there will be a guaranteed market for cement which meets product specifications. If, however, the cement product fails to meet specifications due to the use of the sludge as an ingredient and cannot be sold (or reprocessed and sold), then it must be managed as a hazardous waste in accordance with all applicable RCRA regulations.

(5) Is the secondary material handled in a manner consistent with the raw material/product it replaces?

No. Consistent with the experimental nature of XL projects, the sludge will be managed more carefully than the raw material it replaces. As agreed to in the Final Project Agreement (FPA), IBM will ensure that the sludge is managed to prevent releases to the environment. IBM has assured the other signatories to the FPA that a cement manufacturer must agree to manage the sludge protectively to receive the sludge. Accordingly, management of the sludge to prevent releases is being included as a condition of the site-specific exclusion being proposed today. Another condition of the exclusion is a requirement for IBM to submit semi-annual reports to the agencies detailing the volumes of sludge recycled as part of this XL project.

(6) Other relevant factors.

This is a broad criterion that allows for the consideration of other factors not otherwise evaluated. In this specific case, the fact that this recycling scenario was conducted previously and deemed to be successful by IBM (as discussed in section III. B. 3.) was another factor considered. Also, the fact that this recycling scenario will be conducted in the context of an XL project, which assumes a certain level of regulatory oversight by the Regional office and State regulatory agency, was considered.

For hazardous secondary materials that are used as ingredients to produce a product, one of the key considerations in evaluating whether the secondary material is similar to an analogous raw material is a comparison of the constituent compositions of both the hazardous secondary material and the analogous raw material it replaces. 3 Naturally, the hazardous secondary material must contribute useful or necessary constituents to the production of the product, as do the analogous raw materials. However, to the extent that the hazardous secondary material contains unnecessary (to the product or production process) hazardous constituents at higher concentrations than found in the analogous raw materials, or hazardous constituents not found in the analogous raw materials, one could infer that the constituents are being treated or disposed under the guise of recycling, even if some portion of the secondary material is useful to the production process (see the April 26, 1989 memorandum from Sylvia K. Lowrance, Director of the Office of Solid Waste, to the Hazardous Waste Management Division Directors in Regions I-X entitled “F006 Recycling” available in the docket for this proposal).

Several considerations are worth noting concerning the similarity of IBM's sludge to the analogous raw materials used to produce cement. A comparative analysis of representative samples of IBM's wastewater treatment sludge and samples of analogous raw materials (which, in this case, is taken to be the combination of all the feedstocks that normally make up the feedstream to the cement manufacturing process rather than an individual component, such as limestone) from various cement manufacturing facilities indicates that certain heavy metals (specifically lead, cadmium, 4 and chromium) may be present at slightly higher concentrations in the sludge than in the analogous raw materials. Additionally, the wastewater treatment sludge contains somewhat higher levels of fluoride than found in the analogous raw materials. However, given the variability in both IBM's wastewater treatment sludge and in the raw material feedstocks used by cement manufacturers, and the very low levels of hazardous metals in the sludge, the Agency agrees with IBM that the slightly higher levels are not significant but rather are consistent with the variability typically found in raw materials mined from different sites. In other words, one could expect to find analogous raw materials (e.g., from various mining sites) that contain equivalent or even higher levels of the hazardous constituents found in IBM's sludge. (The data used in comparing IBM's sludge to the analogous raw materials are contained in the Final Project Agreement, which is included in the docket for today's proposal.)

As for the fluoride content of the sludge, it should be noted that fluoride is not a regulated constituent in F006, nor is it a RCRA Appendix VIII hazardous constituent. While fluoride is normally present in cement, IBM's sludge does have notably higher concentrations of calcium fluoride than are typically found in analogous raw materials. Consequently, only a portion of the calcium needed for the production of cement can be derived from the sludge because fluoride concentrations above a certain threshold may have adverse effects on the cement product (or on concrete made using the cement product). Thus, the sludge could not function as the sole source of the calcium in the aggregate of raw materials fed to a cement kiln because the attendant fluoride concentration could exceed that specified for the product. However, the same point may be made with regard to traditional feedstocks used in the production of cement, although the unwanted constituent may be one other than fluoride.

It is a standard practice in the cement industry to combine the various raw material feedstocks that comprise the aggregate composite fed to a cement kiln so that essential components are supplied without resulting in a greater-than-desirable concentration of unwanted constituents (as determined by the product specifications being met), as well as to maximize the cost-effectiveness of the manufacturing process. To do this, a cement manufacturer would analyze individual feedstocks to determine their constituent make-up and then determine the respective proportions of the feedstocks to be used in preparation of the aggregate composite feedstream. For example, a shipment of limestone may be analyzed for its calcium content and be found to also have a high iron (also an essential constituent in cement) content. When this shipment of limestone is used as a source of calcium to make up the feedstream, less iron from another source (e.g., from mill scale, an iron rich by-product of the steel manufacturing process) will need to be added to the feedstream. The Agency believes that, in this specific instance, the limitation on the use of the sludge as a source of calcium, due to its fluoride content, is consistent with normal manufacturing practices rather than an indication that the sludge is not a viable ingredient in the manufacture of cement. The Agency believes that, up to a certain limit, the calcium from the IBM's sludge will perform as effectively in the production of cement as traditional calcium-bearing feedstocks. The Agency notes that the proportion of traditional calcium-bearing feedstocks may similarly be limited by the levels of constituents (other than calcium) that they contain.

Another consideration in the legitimacy determination concerns the ratio of sludge to analogous raw materials. In general, the Agency would consider a low ratio of hazardous secondary material to normal feedstocks to potentially be an indication of sham recycling. For example, a low ratio suggests that the hazardous secondary material may not truly be similar to the analogous raw materials. Moreover, it suggests that the hazardous secondary material is merely being diluted and disposed of by incorporation into a product. A low ratio of hazardous secondary material to normal feedstocks might also imply that the hazardous secondary material contributes so little as to be otherwise unnecessary to the production of the product (see 50 FR at 638, January 4, 1985). In the case of this XL project, however, it is important to note that IBM currently only generates approximately 300 tons/year of the sludge that is the subject of this XL project, and a typical cement manufacturer processes more than 60,000 tons/year of raw materials. Therefore, the overall ratio of sludge to raw material feedstocks could be, at a minimum, approximately 1:200. Although the ratio of IBM's sludge to normal cement feedstocks could be as low as 1:200, in reality it is expected that the sludge will make up a higher percentage of the overall feedstream on a per batch basis because the sludge is expected to be processed soon after the cement manufacturer receives it (as opposed to being stored long enough to be evenly distributed among all batches of cement). Thus, the actual ratio will primarily depend on the frequency of the shipments of sludge from IBM to the cement manufacturer, but it may be relatively small. Also, as discussed further in section III. B. 3., it should be noted that it is likely that the sludge generated by the B/386 East Complex wastewater treatment plant will also be included in this XL pilot project in the future, assuming the sludge achieves the same low levels of hazardous constituents and is the subject of another Final Project Agreement (FPA) or addendum to the current FPA. The estimated volumes of this B/386 East Complex sludge is projected to be 3,900 tons per year. An additional 2,400 tons of non-hazardous wastewater treatment sludge (also generated in the East Complex wastewater treatment plant, but in a system segregated from the treatment of the electroplating wastewaters) may be recycled as an ingredient in cement. While this sludge is non-hazardous and therefore does not require any Federal regulatory flexibility to be recycled as an ingredient in cement, it should be noted that when combined with the total volumes of sludges that may, in the future, be recycled as an ingredient in cement, the total approaches 6,600 tons per year, much more consistent with the volumes of raw material feedstocks normally used to produce cement.

Taking into consideration all the criteria, as discussed above, EPA and NYSDEC have determined that the use of IBM's sludge as an ingredient in cement is legitimate recycling in the context of this XL project. It should particularly be noted that the Agency has made this determination of “legitimate recycling” only in the context of this XL project. The intent of this pilot project is to test an alternative approach from the current regulatory framework, and by its very nature, assures some level of project oversight by the EPA Region 2 office and NYSDEC (as discussed above, this was considered as an “other relevant factor”). Accordingly, the analysis done by EPA, as summarized above, which resulted in a legitimacy determination was a necessary element of this XL project. Normally, however, a determination of legitimate recycling (as the basis for an exclusion from the definition of solid waste) is a self-implementing determination (i.e., the exclusion requires no prior approval from EPA). Nevertheless, written concurrence from the appropriate regulatory agency that a given recycling activity is legitimate is strongly encouraged because persons claiming an exclusion from the definition of solid waste must be able to support their claim in the event of an enforcement action (see 40 CFR 261.2(f)).

The IBM East Fishkill facility in Hopewell Junction, NY conducts semiconductor research and development operations, as well as the manufacture of semiconductor and electronic computing equipment. As a result of these process operations, which include electroplating operations, wastewaters containing dissolved heavy metal and fluoride compounds are generated and subsequently treated in two separate on-site fluoride/heavy metal (F/HM) wastewater treatment facilities, an East Complex (B/386) and a West Complex (B/690). The sludge generated from electroplating wastewaters by both wastewater treatment facilities is designated as F006 Hazardous Waste. The sludge generated by the wastewater treatment facility that serves the West Complex of the facility, identified by IBM as the Building 690 (B/690) F/HM Wastewater Treatment Facility, is the focus of this XL project. In addition to the F006 generated, the East Complex (B/386) generates a non-hazardous wastewater treatment sludge in a segregated wastewater treatment system that does not process electroplating wastewaters (IBM segregated the electroplating wastewaters from other facility wastewaters to minimize the amount of hazardous waste being generated).

Of the total volume of approximately 825 tons per year of F006 waste currently generated by the IBM East Fishkill facility, approximately 300 tons per year are generated by the B/690 West Complex wastewater treatment facility and are the subject of today's proposal. IBM has determined that the sludge generated by the B/386 East Complex wastewater treatment facility is not, at this time, a viable ingredient in cement production. However, as the Final Project Agreement states, IBM will consider (should the implementation of this XL project prove successful) implementing various waste minimization measures to improve the quality of the B/386 East Complex sludge, making it a suitable ingredient in cement production as well, and initiating steps to include the B/386 East Complex sludge in this XL project.

Since the signing of the FPA and during the development of this proposal, IBM's projections for production demand for the next few years has grown significantly. As part of planning for scaling up their production capability, IBM is considering several options to address the increased wastewater treatment capacity needed to accommodate the projected increase in wastewater resulting from an increase in production. One of these options is to implement waste minimization technologies to remove hazardous constituents (e.g., lead) from the B/386 East Complex electroplating wastewater stream prior to precipitating the sludge and subsequently including the B/386 East Complex sludge in this XL pilot project. While the volume of electroplating sludge generated in the B/386 East Complex wastewater treatment plant is currently approximately 525 tons per year, due to the expected increase in production and corresponding increase in sludge generation the volume is estimated to increase to 3,900 tons per year. An additional estimated 2,400 tons of non-hazardous sludge generated in the B/386 East Complex wastewater treatment plant may also be included; however, the Agency notes that because this sludge is non-hazardous, no Federal regulatory flexibility is required to recycle the sludge as an ingredient in cement. Taken all together, the IBM facility could ship approximately 6,600 tons per year of sludge to be used as an ingredient in cement (300 tons/year of sludge currently included in the pilot project, plus 3,900 tons/year of sludge that may become included in this pilot project, plus 2,400 tons/year of non-hazardous sludge) once production has increased. While today's proposal is focused primarily on the 300 tons/year of B/690 West Complex sludge that is currently the subject of the FPA, the Agency is also soliciting comment on the possible future inclusion of the 3,900 tons of B/386 East Complex sludge in this XL pilot project and the exclusion from the definition of solid waste that is being proposed to implement this project. In considering comments, the reader should assume that the threshold levels for hazardous constituents in the sludge and other conditions of the exclusion being proposed for the B/690 West Complex sludge will remain the same for the B/386 East Complex sludge, the only difference being the increase in the volume of sludge being recycled. Should the B/386 East Complex sludge become comparable to the B/690 West Complex sludge, and IBM seeks to include the B/386 East Complex sludge in this XL pilot project, IBM will undertake steps to initiate a new Final Project Agreement or an addendum to the existing FPA, which will undergo the same process of stakeholder outreach and solicitation of comment on the Draft FPA (or addendum) as was done for the existing FPA. Upon signature of the FPA (or addendum) by representatives of EPA, NYSDEC, and IBM that would include the B/386 East Complex sludge in this XL pilot project, the B/386 East Complex sludge may be recycled pursuant to the exclusion being proposed today, assuming the conditions are met.

Also, it should be noted that IBM has recycled both the B/386 East Complex and B/690 West Complex sludges as an ingredient in cement in the past. In 1987, IBM East Fishkill petitioned NYSDEC and EPA Region 2 to allow the recycling of the B/690 West Complex sludge as an ingredient in cement outside of RCRA regulatory controls. Both NYSDEC and EPA agreed that the sludge could be used as a legitimate ingredient in cement and concurred that the sludge would be excluded from the definition of solid waste and therefore, RCRA regulations would not be applicable. In 1988, IBM contracted with a cement manufacturer (which has since been sold and is now operated under new management as a different company) to use the sludge as an ingredient in cement. This recycling practice continued until 1991. In 1991, the original regulatory interpretation granting an exclusion for the sludge was re-evaluated and it was subsequently determined that because cement is a product presumed to be applied to the land, the sludge was not excluded from the definition of solid waste. At that time (and despite the apparent success of the recycling program), IBM decided to end the sludge recycling program. This prior experience demonstrated the technical and economic viability of using IBM's wastewater treatment sludge as an ingredient in cement and was considered by EPA as a “relevant factor” in determining the legitimacy of the recycling scenario.

To overcome the disincentive posed by RCRA regulatory requirements to the recycling of its sludge, IBM has proposed to specifically exclude the B/690 West Complex sludge from the definition of solid waste and thus, from RCRA regulatory jurisdiction. In effect, the sludge would be excluded as an ingredient in an industrial process to make a product (40 CFR 261.2(e)(1)(i)) without application of the limitation on this exclusion for materials used to produce products used in a manner constituting disposal (40 CFR 261.2(e)(2)(i)). Based on their previous experience with this recycling scenario (as discussed above in Section III. B. 3.), IBM believes the recycling of the B/690 West Complex sludge as an ingredient in cement is protective of human health and the environment and benefits the environment through conservation of finite natural resources, as well as the conservation of hazardous waste landfill space for hazardous wastes that are not amenable to environmentally sound recycling. Further, IBM believes RCRA regulatory controls provide no additional environmental protection, but rather serve as such a disincentive to recycling that sludge which could otherwise be beneficially used to manufacture a product is instead disposed of in a landfill. Rather than seek a delisting pursuant to 40 CFR 260.22 (for which the Agency would, in general, evaluate whether the sludge should be designated a hazardous waste and if not, remove the specific wastestream from the scope of the hazardous waste listing description through a rulemaking), IBM believed the best approach would be to “test” the need for RCRA jurisdiction over this sludge when it is recycled into cement. Therefore, IBM has opted to work with the Agency, NYSDEC, and interested stakeholders to develop and implement a pilot project under Project XL that will assess whether the B/690 West Complex sludge can be used as an ingredient to produce cement in an environmentally sound manner without RCRA Subtitle C regulatory controls and to develop information that will contribute to possible future regulatory actions by the Agency regarding the management of F006 wastes.

To implement this XL project, the Agency is proposing in today's notice to provide a site-specific exclusion in 40 CFR 261.4(a) (i.e., “Materials which are not solid wastes.”) for the wastewater treatment sludge generated at the IBM East Fishkill facility when used as an ingredient in the production of cement. This site-specific exclusion will include conditions which reflect the intent to “test” whether this recycling scenario can be realized in an environmentally sound manner and to gather a portion of the data needed to make an informed determination concerning the possible adoption of the regulatory flexibility on a national level.

The Agency agrees with IBM that this XL project has merit and has the potential to yield greater environmental benefits should this exclusion be adopted on a national basis. Project XL offers the opportunity for the Agency to test its belief that this recycling scenario can be protective of human health and the environment outside of RCRA regulatory control. Further, this is the type of pilot project for which Project XL was conceived, to provide the opportunity to explore alternative regulatory approaches that differ from the current regulatory framework.

EPA notes that F006 is a very large volume hazardous wastestream nationwide. (In an October 7, 1998 study prepared by EPA's Office of Solid Waste and Emergency Response (OSWER), the amount of F006 generated in the US per year was estimated to range from 360,000 to 500,000 tons of dry weight equivalent.) A large portion of this wastestream is undoubtedly more amenable to other forms of recycling (e.g., recovery of metal values) than for use as an ingredient in cement, and some portion may prove to be inappropriate for any current recycling technology; however, the Agency believes that even if a small portion of this total volume of sludge (as well as other similar wastestreams) proves to be sufficiently similar to IBM's B/690 West Complex sludge to legitimately be recycled in this manner, environmental benefits could result. Although this XL project will provide data regarding the effectiveness and safety of using IBM's wastewater treatment sludge as an ingredient in the manufacture of cement, EPA anticipates that additional data on other F006 sludges would need to be collected prior to developing a national rulemaking for this particular recycling scenario.

The Agency also notes that the drafting of the regulatory text warrants particular attention by commenters on this proposal. As discussed earlier, the intent of this regulatory modification is to allow for the signed FPA to be implemented (after the State also makes the necessary changes to its hazardous waste program to likewise allow for this pilot project to be implemented). However, the regulatory text being proposed would apply more broadly than the project described by the current FPA. Specifically, the conditional exclusion being proposed is not limited to the sludge generated in the B/690 West Complex, but rather applies generically to wastewater treatment sludge generated at the IBM East Fishkill facility. This is being done in anticipation of the inclusion of the sludge generated in the B/386 East Complex as part of this pilot project, after the signing of a new FPA or addendum to the existing FPA. Normally, the Agency would wait until the new FPA (or addendum) has been developed and signed before undertaking a regulatory modification to include the additional wastes subject to the new FPA (or addendum). However, because the exclusion being proposed today includes conditions that address the concentration levels of hazardous constituents in the sludge, as well as protective management practices and data gathering and reporting requirements, that are designed to ensure that the sludge will not pose an increase in risk to human health and the environment during this pilot project, the Agency believes it makes sense to propose the regulatory modification more broadly to allow for the inclusion of the B/386 East Complex sludge immediately upon signature of the new FPA (or addendum). EPA believes that the only potential concern that may arise by the inclusion of the B/386 East Complex sludge would be the additional volumes of the B/386 East Complex sludge (which are estimated to be an additional 3,900 tons/year). Therefore, the Agency is specifically soliciting comment on the potential inclusion of the additional volume of sludge in this pilot project, as well as on whether it is appropriate to propose to modify the regulations to accommodate a potential future addendum to the existing FPA (or a new FPA) that would bring additional volumes of sludges within the scope of the exclusion.

IBM understands that stakeholder involvement is an integral part of the XL process and has encouraged interested stakeholders to pursue an active role in the development of this XL project. In addition to contacting a broad base of potential stakeholders in the local community, IBM has and commits to continue to conduct outreach to a regional and national cross-section of potentially interested parties. IBM has also undertaken several initiatives in an effort to solicit interest in the XL project from a targeted audience of environmental groups. For example, on April 26, 2000, IBM gave a presentation on this XL project followed by a question and answer session to the Dutchess County Environmental Management Council (EMC), which is comprised of 21 representatives who advise their local governments and citizens on environmental issues. Similarly, IBM made a presentation on the XL project to the Town of East Fishkill Conservation Advisory Council (CAC). Following the one-hour presentation and discussion session, there was a general consensus among the CAC members that the project should be supported. Finally, IBM retained the services of the Atlantic States Legal Foundation, Inc. (an environmental advocacy group) to assist with the involvement of stakeholders by facilitating notification of public meetings and coordinating the input of interested stakeholders in the development of the Final Project Agreement.

EPA notes that should IBM seek to include the additional volume of sludge generated at the East Complex wastewater treatment plant (i.e., B/386 East Complex sludge) in this pilot project, the same efforts to seek stakeholder involvement will be an integral part of the development of the new FPA (or addendum to the current FPA) that will allow for the additional sludge to be included in the pilot project.

The IBM East Fishkill facility will continue to be regulated as a Large Quantity Generator due to the volume of hazardous wastes (not subject to this XL project) generated at other parts of the facility. Therefore, IBM will continue to have similar paperwork requirements. Additionally, given the nature of a pilot project, IBM will be required to report additional information as a means of evaluating this pilot project and to assist the Agency by providing some of the information necessary to evaluate whether similar regulatory flexibility should be transferred to the national program. This XL project initially addresses only a relatively small volume of wastewater treatment sludge (approximately 300 tons/year). Therefore, the immediate cost savings to the IBM East Fishkill facility resulting from this XL project are not expected to be great, though some savings will be realized. The 300 tons/year of wastewater treatment sludge that EPA is today proposing to exclude from the definition of solid waste currently costs the IBM East Fishkill facility approximately $27,000 to dispose of in a permitted hazardous waste landfill in Canada. This amount will be saved as a result of finalizing today's proposed exclusion (although IBM expects to pay some amount to the cement manufacturer for recycling the sludge as an ingredient in cement). An additional $8,000 (approximately) will be saved from the New York State waste management fees charged for hazardous wastes disposed in a landfill ($27/ton/year of waste). Because IBM expects to pay for the transportation of the sludge to the cement manufacturing facility, there are no notable savings in transportation costs. The IBM East Fishkill facility expects to save a total of $35,000 per year as a result of this proposed XL project. The Agency notes, however, that should the projections for increased production and consequent sludge generation prove accurate, and the expected addition of the B/386 East Complex sludge in this pilot project occur, the total volume of sludge that would otherwise be subject to hazardous waste management costs could be approximately 4,200 tons per year, with potential savings (including both disposal fees and New York State waste management fees) of $500,000 per year.

EPA, as well as NYSDEC, will benefit from some paperwork reduction and cost savings by not having to process and track additional manifests and export documents that will otherwise have to be processed without this XL project. Again, however, these cost savings and paperwork reductions will be limited because of the other hazardous wastes generated at the facility.

This project has the potential to result in significant cost savings and paperwork reduction if this pilot project proves successful and the regulatory flexibility is promulgated on a national basis. On a national level, the overall cost and paperwork reductions that could be realized may be more significant, assuming wastewater treatment sludges generated by other facilities are amenable to this type of recycling. The Agency would need to collect additional data on a wider cross-section of F006 sludges prior to developing a national rulemaking for this type of recycling scenario.

As stated earlier, to allow for the implementation of the XL pilot project, EPA is today proposing to modify the current regulatory framework in 40 CFR 261.4(a) to provide a site-specific exclusion from the regulatory definition of solid waste (and thus, RCRA regulatory jurisdiction) for IBM's B/690 West Complex wastewater treatment sludge that is used as an ingredient in the production of cement. NYSDEC likewise intends to modify its State hazardous waste program to allow for the same site-specific exclusion from regulatory controls. 5 The Agency intends that the exclusion, once finalized, will apply to all the wastewater treatment sludge resulting from the B/690 West Complex wastewater treatment facility that will be used as ingredients in the production of cement, including those sludges that are in the process of being generated, sludges that result from wastewaters already in the wastewater treatment system, and sludges that have been removed from the wastewater treatment system and are being stored pending off-site transportation.

Through the development of the Final Project Agreement (FPA), IBM has agreed to comply with several key criteria as conditions for this exclusion, which will be included in the regulatory language. These conditions are focused on ensuring continued protection of human health and the environment, documenting the environmental benefits resulting from the removal of RCRA Subtitle C regulatory control over the recycling of the B/690 West Complex wastewater treatment sludge as an ingredient in cement, and gathering the data and other information that may assist the Agency in making a determination regarding the possible transfer of this site-specific exclusion to the national program in the future. Such data may be useful in supporting future EPA regulatory initiatives regarding the recycling of F006 wastestreams to make cement products, however, the Agency would need to collect additional information on a broader cross-section of F006 prior to developing a national rulemaking for this particular recycling scenario.

As conditions of the site-specific exclusion, IBM must comply with the following:

(1) Analysis (using the methods specified in 40 CFR Part 264, Appendix IX) of the constituent concentrations in the B/690 West Complex wastewater treatment sludge to ensure that the sludge being recycled remains consistent with the sludge evaluated in developing this XL project and that it meets the threshold levels discussed below. IBM must perform this analysis every three months for an initial 12-month period. (Note that some or all of these data may be derived from the time period immediately preceding the effective date of this rule.) Following the initial 12-month period (i.e., four sampling/analysis events), IBM must analyze the sludge every six months for the duration of the XL project. These analytical data (including both the 3-month and 6-month sampling/analysis events) must be submitted to the Region 2 office and NYSDEC every six months. Additionally, after any change in the manufacturing process or wastewater treatment process that could affect the chemical composition of the wastewater treatment sludge, sampling and analysis must be conducted.

(2) Management standards for the sludge to ensure that the sludge is actually recycled rather than inadvertently released to the environment, and to ensure that the sludge is managed as a commodity.

(3) Tracking of the sludge, to ensure that the sludge reaches the cement manufacturing facility. In general, under the current hazardous waste regulations (see 40 CFR Parts 262, Subpart D and 263, Subpart B), wastes are tracked through the use of a hazardous waste manifest which accompanies the waste shipment. 6 The regulatory requirements are designed to ensure that the waste is actually received by the facility intended to receive the waste, with built-in time limits requiring a generator to proactively address a shipment that has not been received in a timely fashion. However, because this pilot project provides an exclusion from the definition of solid waste (and therefore from being a hazardous waste), the manifest requirements do not apply. Nevertheless, the Agency believes the need to track the wastewater treatment sludge still remains, to ensure that a shipment of sludge actually reaches its intended destination. However, the Agency does not believe that in this case a hazardous waste manifest, or a similar document, is the only means to ensure that the sludge is being shipped and received appropriately. Therefore, the Agency is allowing IBM the flexibility to develop a tracking system that, in effect, provides the same assurances that the hazardous waste manifest would provide. Specifically, this tracking system must include the following information: the date of shipment, volume of sludge being transported, where the sludge is being shipped, and the date that the shipment was received. IBM remains responsible for ensuring that the sludge is actually received and processed by the cement manufacturer.

(4) Additional data collection and reporting on the volumes of sludge recycled as part of this XL project, and an accounting of the volume of analogous raw materials conserved, or alternatively, the increased volume in cement produced as a result of using the sludge as an ingredient.

The threshold levels for the hazardous constituents in the sludge (one of the conditions of the exclusion) are derived based on six recent samples of the wastewater treatment sludge taken between February 1999 and June 2000. Given the analytical results, a standard statistical method  7 was used to derive the actual threshold levels, using a 95% confidence level. These levels are not intended to be health-based levels. The threshold levels are intended to serve as a means to gauge the performance of the wastewater treatment process and the composition of the sludge, given that EPA's willingness to implement this pilot project was based in part on the very low levels of hazardous constituents in the sludge and given that this pilot project is premised on the sludge being comparable to the raw ingredients used to produce cement.

In addition to analyzing the sludge to ensure that the threshold levels for the hazardous constituents are met, EPA is requiring IBM to analyze for two additional hazardous constituents, specifically mercury and beryllium, which are not necessarily expected to be in the wastewater treatment sludge. While mercury is not used in the production process, it is used in the laboratory and could conceivably end up in the wastewater treatment sludge (although the Agency acknowledges that in all of the analyses of the sludge, mercury was not detected). Beryllium is also not used in the production process, nor anywhere else at the facility. However, as discussed earlier, it has been found in the sludge in measurable concentrations, presumably resulting as a contaminant in the lime used in the wastewater treatment process. IBM has agreed to analyze and provide data on both mercury and beryllium  8 to the Agency to increase the available information on the sludge. Additionally, IBM has agreed that, should mercury or beryllium be found at significant levels in the sludge, the Agency may set appropriate threshold levels for these constituents as well, through a rulemaking to amend the site-specific exclusion from the definition of solid waste.

The purpose of the periodic analysis is to serve as a check on the performance of the wastewater treatment process itself, as well as to ensure that the sludge is consistently within the threshold concentration levels for the hazardous constituents in the sludge. However, in the unlikely event that the quarterly, or semi-annual, analysis of the wastewater treatment sludge indicates that a specific batch of sludge exceeds one or more constituent thresholds, the pilot project will be temporarily suspended until subsequent analysis (which can be performed immediately) of the sludge demonstrates that the thresholds are once again being met (i.e., the exclusion would not be applicable because the conditions were not met, and will continue to be non-applicable until IBM demonstrates that the conditions are again being met). The Agency acknowledges that the results of the analysis may not be known until after the sludge has already been received and processed by the cement manufacturer as an ingredient in cement (due to the materials handling logistics at the facility, IBM is unable to store the sludge on-site until the results of the analysis are known). Because the threshold levels are so low and because the sludge has demonstrated a relatively consistent composition, the Agency does not believe any action will be necessary to address the sludge that has already been received and processed into cement (in effect, that cement will have been “grandfathered” by the conditional exclusion). The Agency will, however, evaluate such failures to meet the threshold levels as part of its evaluation of the success of this pilot project.

This project will be in effect for five years from the date that the final rulemaking becomes effective unless it is terminated earlier or extended by all Project Signatories (if the FPA is extended, the comments and input of stakeholders will be sought and a Federal Register notice will be published). Any Project Signatory may terminate its participation in this project at any time in accordance with the procedures set forth in the FPA. The project will be completed at the conclusion of the five-year anniversary of the final rulemaking or at a time earlier or later determined by the amount of information gathered to date and the interest of the parties involved. The proposed site-specific exclusion that enables the implementation of this XL project contains a “sunset provision” that will effectively terminate the exclusion automatically after five years, unless further regulatory action is taken to extend the XL project (or end it sooner).

Prior to, or at the completion of the project term, EPA and NYSDEC commit to evaluating the project. If the project results indicate that it was a success, EPA will consider making the site-specific exclusion permanent (through normal rulemaking procedures). EPA will also consider transferring the regulatory flexibility (or similar flexibility) to the national RCRA program (through normal rulemaking procedures), but such a national change would require more information than the Agency expects to gather from this XL project. Should on-going evaluation during the course of the XL project indicate that the project is not successful, EPA will promulgate a rule to remove the site-specific exclusion prior to the five-year sunset provision. However, as for any conditional exclusion, if at any time, should IBM or the cement manufacturer fail to meet all of the conditions of the site-specific exclusion, the exclusion is not applicable. Also, the Agency may promulgate a rule to withdraw the exclusion at any time, subject to the procedures agreed to in the Final Project Agreement (FPA), including, but not limited to, a substantial failure on the part of any Project Signatory to comply with the terms and conditions of the FPA or if the exclusion becomes inconsistent with future statutory or regulatory requirements.

A public hearing will be held, if requested, to provide an opportunity for interested persons to make oral presentations regarding this regulation in accordance with 40 CFR Part 25. Persons wishing to make an oral presentation on the site-specific rule to implement the IBM East Fishkill XL project should contact Mr. Sam Kerns or Ms. Aleksandra Dobkowski-Joy of the EPA Region 2 office, at the address given in the ADDRESSES section of this document. Any member of the public may file a written statement before the hearing, or after the hearing, to be received by EPA no later than July 6, 2001. Written statements should be sent to EPA at the addresses given in the ADDRESSES section of this document. If a public hearing is held, a verbatim transcript of the hearing, and written statements provided at the hearing will be available for inspection and copying during normal business hours at the EPA addresses for docket inspection given in the ADDRESSES section of this preamble.

Because this rule affects only one facility, it is not a rule of general applicability and therefore not subject to OMB review and Executive Order 12866. In addition, OMB has agreed that review of site-specific rules under Project XL is not necessary.

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq. , generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. This rule will not have a significant impact on a substantial number of small entities because it only affects the IBM facility in Hopewell Junction, NY and it is not a small entity. Therefore, EPA certifies that this action will not have a significant economic impact on a substantial number of small entities.

This action applies only to one facility, and therefore requires no information collection activities subject to the Paperwork Reduction Act, and therefore no information collection request (ICR) will be submitted to OMB for review in compliance with the Paperwork Reduction Act, 44 U.S.C. 3501, et seq.

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 of 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.

As noted above, this rule is applicable only to one facility in New York. EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. EPA has also determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the UMRA.

Under section 3006 of RCRA, EPA may authorize qualified States to administer and enforce the RCRA program for hazardous waste within the State. (See 40 CFR Part 271 for the standards and requirements for authorization.) States with final authorization administer their own hazardous waste programs in lieu of the Federal program. Following authorization, EPA retains enforcement authority under sections 3008, 7003 and 3013 of RCRA.

After authorization, Federal rules written under RCRA (non-HSWA), no longer apply in the authorized state except for those issued pursuant to the Hazardous and Solid Waste Act Amendments of 1984 (HSWA). New Federal requirements imposed by those rules do not take effect in an authorized State until the State adopts the requirements as State law.

In contrast, under section 3006(g) of RCRA, new requirements and prohibitions imposed by HSWA take effect in authorized States at the same time they take effect in nonauthorized States. EPA is directed to carry out HSWA requirements and prohibitions in authorized States until the State is granted authorization to do so.

Today's proposed rule, if finalized, will be promulgated pursuant to non-HSWA authority, rather than HSWA. New York has received authority to administer most of the RCRA program; thus, authorized provisions of the State's hazardous waste program are administered in lieu of the Federal program. New York has received authority to administer the regulations that define solid wastes. As a result, if today's proposed rule to modify the existing regulations to provide a site-specific exclusion for IBM's wastewater treatment sludge is finalized, it would not be effective in New York until the State adopts the modification. It is EPA's understanding that subsequent to the promulgation of the final rule, New York intends to propose rules or other legal mechanisms to provide the exclusion. EPA may not enforce these requirements until it approves the State requirements as a revision to the authorized State program.

The Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) is determined to be “economically significant,” as defined under Executive Order 12866; and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it is not an economically significant rule, as defined by Executive Order 12866, and because it does not involve decisions based on environmental health or safety risks.

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 and 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.”

The proposed rule 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 powers and responsibilities among various levels of government, as specified in Executive Order 13132. The proposed rulemaking will only affect one facility, providing regulatory flexibility applicable to this specific site. Thus, Executive Order 13132 does not apply to this proposed rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

This proposed rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. EPA is currently unaware of any Indian tribes located in the vicinity of the facility. Thus, Executive Order 13175 does not apply to this rule.

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., material 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 standard. This proposed rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards. EPA welcomes comments on this aspect of the proposed rulemaking and, specifically, invites the public to identify potentially-applicable voluntary consensus standards and to explain why such standards should be used in this regulation.

For the reasons set forth in the preamble, part 261 of chapter I of title 40 of the Code of Federal Regulations is proposed to be amended as follows:

This is a summary of the Commission's NPRM in IB Docket No. 01-96; FCC 00-134, adopted April 19, 2001 and released on May 3, 2001. The complete text of this NPRM is available for inspection and copying during normal business hours in the FCC Reference Center (Room), 445 12th Street, SW., Washington, DC 20554, and also may be purchased from the Commission's copy contractor, International Transcription Service, Inc. (ITS, Inc.), 1231 20th Street, NW., Washington, DC 20036, (202) 857-3800.

The NPRM describes the technical criteria for the NGSO FSS, and the radiofrequency spectrum allocated by the FCC late last year to the NGSO FSS in ET Docket No. 98-206, 66 FR 10601 (February 16, 2001). The NPRM proposes four spectrum sharing options. The first is “flexible band segmentation,” which would divide the available spectrum into equal blocks to be assigned to particular licensees. The second option is “dynamic band segmentation,” under which the available spectrum is divided equally by the number of satellite systems transmitting and receiving signals in their intended orbit. The third sharing option, “avoidance of in-line interference events,” allows all systems to operate in the entire available spectrum, so long as they avoid interfering with each others' systems, by means of calculating those occasions when their satellites and earth stations are aligned so as to create interference. Under the fourth sharing option, “homogeneous constellations,” the FCC would adopt one or more unifying constellation designs to accommodate all licensees. The NPRM also asks commenters to suggest variations or alternatives to the four options proposed.

In addition, the NPRM proposes to allow blanket licensing of NGSO FSS earth stations, but only in specified frequency bands. The NPRM also requires NGSO FSS applicants to demonstrate compliance with power limitations adopted by the Commission when it allocated spectrum to the NGSO FSS in December 2000.

Finally, the NPRM reviews and seeks comment on each proposed service rule for the NGSO FSS in the Ku-band frequencies. The proposed service rules include coverage area requirements, system license and license terms, FCC regulatory classification as common carrier or non-common carrier, system implementation milestones, regulatory reporting requirements, international coordination, and a prohibition on the sale of a bare license for a profit. The NPRM also proposes to require that NGSO FSS applicants disclose their plans to mitigate orbital debris.

The Regulatory Flexibility Act (RFA), 1 requires that a regulatory flexibility analysis be prepared for notice and comment rulemaking proceedings unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.”  2 The RFA generally defines “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.”  3 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 4 A small business concern is one which: (a) is independently owned and operated; (b) is not dominant in its field of operation; and (c) satisfies any additional criteria established by the Small Business Administration (SBA). 5

This Notice of Proposed Rulemaking ( NPRM ) seeks comment on various proposals for creating a spectrum assignment approach that would accommodate all proposed non-geostationary satellite orbit fixed satellite service (NGSO FSS) systems and provide service to consumers as quickly as possible. This NPRM also seeks comment on proposals for service rules to apply to NGSO FSS systems. 6 These actions are necessary for the Commission to evaluate these proposals and seek comment from the public on any other alternatives. The objective of this proceeding is to assign the NGSO FSS spectrum in an efficient manner and create rules to ensure systems implement their proposals in a manner that serves the public interest. We believe that adoption of the proposed rules will reduce regulatory burdens and, with minimal disruption to existing FCC permittees and licensees, result in the continued development of NGSO FSS and other satellite services to the public. If commenters believe that the proposed rules discussed in the NPRM require additional RFA analysis, they should include a discussion of this in their comments.

The Commission has not developed a definition of small entities applicable to geostationary or non-geostationary satellite orbit fixed-satellite or mobile satellite service operators. Therefore, the applicable definition of small entity is the definition under the SBA rules applicable to Communications Services “Not Elsewhere Classified.” This definition provides that a small entity is one with $11.0 million or less in annual receipts. 7 This Census Bureau category is very broad, and commercial satellite services constitute only a subset of the total number of entities included in the category.

The rules proposed in this NPRM apply only to entities providing NGSO FSS. Small businesses will not have the financial ability to become NGSO FSS system operators because of the high implementation costs associated with satellite systems and services. Since there is limited spectrum and orbital resources available for assignment, we estimate that only seven applicant entities, whose applications are pending, will be authorized by the Commission to provide these services. 8 None of the seven applicants is a small business because each has revenues in excess of $11 million annually or has parent companies or investors that have revenues in excess of $11 million annually.

We therefore certify that the rules proposed in this NPRM will not apply to any small entities. The Commission's Office of Public Affairs, Reference Operations Division, will send a copy of this NPRM, including this certification, to the Chief Counsel for Advocacy of the Small Business Administration. A copy will also be published in the Federal Register .

Ex Parte Presentation. This is a permit-but-disclose rulemaking proceeding. Ex parte presentations are permitted, provided they are disclosed as provided in Commission Rules. See generally 47 CFR 1.1202, 1.1203, and 1.1206(a).

Authority. This action is taken pursuant to sections 4(i), 7(a), 303(c), 303(f), 303(g), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 157(a), 303(c), 303(f), 303(g), and 303(r).

Comment. Pursuant to Sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on or before June 18, 2001, and reply comments on or before July 19, 2001. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (May 1, 1998).

Comments filed through the ECFS can be sent as an electronic file via the Internet to <http://www.fcc.gov/e-file/ecfs.html>. Generally, only one copy of an electronic submission must be filed. If multiple docket or rulemaking numbers appear in the caption of this proceeding, however, commenters must transmit one electronic copy of the comments to each docket or rulemaking number referenced in the caption. In completing the transmittal screen, commenters should include their full name, Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov, and should include the following words in the body of the message, “get form <your e-mail address.” A sample form and directions will be sent in reply.

Parties who choose to file by paper must file an original and four copies of each filing. All filings must be sent to the Commission's Secretary, Magalie Roman Salas, Office of the Secretary, Federal Communications Commission, The Portals, 445 Twelfth Street, SW., Room TW-A325, Washington, DC 20554.

Parties who choose to file by paper should also submit their comments on diskette. These diskettes should be submitted to: Commission's Secretary, Magalie Roman Salas, Office of the Secretary, Federal Communications Commission, The Portals, 445 Twelfth Street, SW., Room TW-A325, Washington, DC 20554. Such a submission should be on a 3.5 inch diskette formatted in an IBM compatible format using Microsoft Word for Windows or compatible software. The diskette should be accompanied by a cover letter and should be submitted in “read only” mode. The diskette should be clearly labeled with the commenter's name, IB Docket No. 01-96, type of pleading (comment or reply comment), date of submission, and the name of the electronic file on the diskette. The label should also include the following phrase “Disk Copy—Not an Original.” Each diskette should contain only one party's pleading, preferably in a single electronic file. In addition, commenters must send diskette copies to the Commission's copy contractor, International Transcription Service, Inc., 1231 20th Street, NW., Washington, DC 20037.

Pursuant to Sections 4(i), 7(a), 303(c), 303(f), 303(g), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 157(a), 303(c), 303(f), 303(g), and 303(r), this Notice of Proposed Rulemaking is hereby adopted.

The Commission's Consumer Information Bureau, Reference Information Center, SHALL SEND a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis to the Chief Counsel for Advocacy of the Small Business Administration.

The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) whether the proposed 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 estimate; (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 Approval Number: New (3060-XXXX).

Title: NGSO FSS Satellite Service.

Form No.: NA.

Type of Collection: New Collection.

Respondents: Business or other for-profit.

Number of Respondents: 107.

Estimated Time for Response: 3 hours.

Total Annual Burden: 321 hours.

Needs and Uses: The information will be used by the Federal Communications Commission (FCC) and interested members of the public to ensure compliance with the rules adopted for the NGSO FSS satellite service. Specifically, the rules require space station applicants to submit certifications of compliance with specific technical operating requirements adopted for this service. The rules require space station licensees to file annual reports indicating progress of system implementation and identifying any system failures, delays or difficulties. In addition, entities granted blanket earth station licenses are required to report the number stations brought into use each year. These rules will allow the Commission to grant licenses in compliance with the technical rules of this service and to ensure continued compliance by licensees. Without such information, the FCC could not determine whether satellite licenses are operating in conformance with its rules.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 25 as follows:

This is a summary of the Commission's Order to Show Cause, MM Docket No. 00-69, adopted May 2, 2001, and released May 11, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center, Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractors, International Transcription Services, Inc., 1231 20th Street, NW., Washington, DC 20036, (202) 857-3800, facsimile (202) 857-3805.

Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contact.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

Radio broadcasting.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

This is a summary of the Commission's Notice of Proposed Rule Making, MM Docket No. 01-112, adopted May 16, 2001, and released May 25, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Information Center, 445 Twelfth Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's copy contractors, International Transcription Services, Inc., 1231 20th Street, NW., Washington, DC 20036, (202) 857-3800, facsimile (202) 857-3805.

Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contact.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

This is a synopsis of the Commission's Notice of Proposed Rule Making, MM Docket No. 01-111, adopted July 16, 2001, and released July 31, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center (Room CY-A257), 445 Twelfth Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Service, Inc., 1231 20th Street, NW., Washington, DC 20036, (202) 857-3800.

Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR Part 73 as follows:

We are all concerned with assuring the safety of our children, our most precious resources. With the cooperation of numerous partners, including the child restraint industry, automotive industry, citizen activists, non-profit organizations, and government, we have made great strides during the past few years in enhancing the safety of children riding in motor vehicles. For example, all states now have laws requiring children to be in child restraints, and some of these laws have been upgraded to cover the use of booster seats. More and more children are riding in child restraints, and they have saved over 300 lives per year over the past five years. There has also been an increased public awareness of the need to install child restraint systems properly and to keep children in appropriate child restraint systems as long as possible.

Despite the successes, there are issues that require further attention. One such area is the use of booster seats. Restraint use decreases as children get older. While restraint use for infants is 97 percent, and for toddlers (ages 1 through 4) is 91 percent, restraint use for children ages 5 through 15 decreases to 72 percent. These are children approximately ages 4 to 8. This age group accounts for 25 percent of all fatalities among children under age 15.

The Transportation Recall Enhancement, Accountability and Documentation (TREAD) Act, enacted in November 2000, charged the Secretary of Transportation with developing a five year strategic plan to reduce deaths and injuries caused by failure to use the appropriate booster seat in the 4 to 8 year old age group by 25 percent. TREAD requires that this plan be implemented in November 2001.

In addition to the general public, the agency invites such groups as the booster seat manufacturers, data collection/insurance groups, child advocacy groups, etc., to submit comments on this notice. All written comments shall be in English. Comments must not exceed 15 pages in length, but necessary attachments may be appended to these submissions without regard to the 15-page limit (49 CFR 553.21). This limitation is intended to encourage commenters to detail their primary arguments in a concise fashion.

Amendments to comments received under Request for Comments “Child Restraint System Safety Plan” published in the November 27, 2000 Federal Register (Docket Number NHTSA-7938) are also welcomed.

If a commenter wishes to submit certain information under a claim of confidentiality, three copies of the complete submission, including purportedly confidential business information, should be submitted to the Chief Counsel, NHTSA, at the street address given above, and two copies from which the purportedly confidential information has been deleted should be submitted to Tami Levitas at the above address. A request for confidentiality should be accompanied by a cover letter setting forth the information specified in the agency's confidential business information regulation (49 CFR part 512).

Further information on booster seats can be obtained by going to the NHTSA web site at www.nhtsa.dot.gov.

On July 10, 2001, NHTSA will conduct a public meeting to provide a forum for all interested persons to discuss the issues set out above. Some of the topics to be discussed at the meeting include:

1. What type(s) of educational programing should be developed to increase booster seat use?

2. What types of educational programing will have the biggest impact on increasing booster seat use?

3. What do you see as the single greatest challenge in educating the public about booster seat use? How do we overcome this challenge?

4. Who are the primary target audiences for booster seat education? Please identify specific segments of the population.

5. What is the best method of program delivery (e.g. mass communication, classroom setting; electronic medium, etc.)?

6. With whom should NHTSA partner to develop this plan?

7. What role should private sector entities (i.e. auto manufacturers, child restraint manufacturers, retail outlets, etc.) play in this program?

8. What are potential funding sources for program activities?

9. What criterion(a) do people use when selecting a booster seat?

10. What are the different types of booster seats?

11. How do the different types of booster seats compare in terms of: features, cost, ease of use, etc.?

12. Other topics will be based on comments received from this announcement.

If you wish to make a presentation at the meeting, please contact Tami Levitas at the above mailing address or telephone number by July 2, 2001. If your presentation will include slides, motion pictures, or other visual aids, please so indicate and NHTSA will make the proper equipment available. Presenters should bring at least one copy of their presentation to the meeting so that NHTSA can readily include the material in the public record. Those speaking at the public meeting should limit the length of their presentations to 10 minutes. Due to time limitations, NHTSA may have to limit the number of presenters per organization. NHTSA will provide auxiliary aids to participants as necessary. Any person desiring “auxiliary aids” (e.g., sign-language interpreter, telecommunications devices for deaf persons (TDDs), readers, taped texts, brailled materials, or large print materials and/or a magnifying device), please contact Tami Levitas.

Since Section 14 of the TREAD Act charged NHTSA with “Improving the safety of child restraints,” this is the first of several Federal Register notices to be published that will advise of public meetings, request for comments, and/or advise of notice of proposed rulemaking on topics such as child seat labeling, child restraint ratings system, and booster seat study.

Amendments to comments received under Request for Comments “Child Restraint System Safety Plan” published in the November 27, 2000, Docket Number NHTSA-7938, Federal Register are also welcomed.

Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the Docket Number of this document (NHTSA-01-9785) in your comments. Submit all written comments to the Docket Management at the above address.

If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.

If you wish to submit any information under a claim of confidentiality, send three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NCC-01, National Highway Traffic Safety Administration, Room 5219, 400 Seventh Street, SW., Washington, DC 20590. Include a cover letter supplying the information specified in our confidential business information regulation (49 CFR Part 512).

In addition, send two copies from which you have deleted the claimed confidential business information to Docket Management, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590.

In our response, we will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under DATES. To the extent possible, we will also consider comments that Docket Management receives after that date.

Please note that even after the comment closing date, we will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically check the Docket for new material.

You may read the comments by visiting Docket Management in person at Room PL-401, 400 Seventh Street, SW., Washington, DC from 9:00 a.m. to 5:00 p.m., Monday through Friday.

You may also see the comments on the Internet by taking the following steps:

a. Go to the Docket Management System (DMS) Web page of the Department of Transportation ( http://dms.dot.gov ).

b. On that page, click on “search.”

c. On the next page (( http://dms.dot.gov/search/ ) type in the four-digit Docket Number shown at the beginning of this document (9785). Click on “search.”

d. On the next page, which contains Docket summary information for the Docket you selected, click on the desired comments. You may also download the comments.

Section 4(b)(3)(A) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq. ), requires that, for any petition to revise the List of Threatened and Endangered Species containing substantial scientific and commercial information that listing may be warranted, we make a finding within 12 months of the date of the receipt of the petition on whether the petitioned actions is—(i) not warranted, (ii) warranted, or (iii) warranted but precluded from immediate proposal by other higher priority efforts to revise the List of Threatened and Endangered Species. Section 4(b)(3)(C) requires that petitions for which requested action is found to be warranted but precluded should be treated as though resubmitted on the date of such finding, i.e., requiring a subsequent finding to be made within 12 months. Such 12-month findings are to be published promptly in the Federal Register .

On July 28, 1999, we received a petition dated July 26, 1999, from the Biodiversity Legal Foundation. The petitioner requested us to list Botrychium lineare as endangered or threatened and to designate critical habitat within a reasonable period of time following the listing. The petitioner submitted biological, distributional, historical, and other information and scientific references in support of the petition.

On May 10, 2000 (65 FR 30048), we published a 90-day petition finding concluding that the petition presented substantial information indicating that the requested action may be warranted. Accordingly, we initiated a status review pursuant to section 4(b)(3)(B) on the petitioned action.

We have reviewed the petition, and based on the best scientific and commercial information available, we believe that sufficient information is currently available to support a finding that listing Botrychium lineare as threatened is warranted, but that a proposed rule at this time is precluded by work on other higher priority listing actions.

Section 4(b) of the Act states that we may make warranted but precluded findings only if we find that (1) an immediate proposed rule is precluded by other pending actions, and (2) expeditious progress is being made on other listing actions. Due to the large amount of litigation we face, primarily over critical habitat, we are working on numerous listing actions mandated by court orders and settlement agreements. Complying with these orders and settlement agreements will consume nearly all or all of our listing budget for FY 2001. Any funding we may have available for discretionary listing actions will likely be allocated for emergency listings only. However, we can continue to place species on the candidate species list (Jamie Clark, Service, in litt. 2000).

A member of the adder's-tongue family (Ophioglossaceae), Botrychium lineare is a small perennial fern with a pale green leaf (trophophore) from 6 to 18 centimeters (2 to 7 inches) long. Leaf segments are typically linear and divided or forked at the ends. The sporophore (spore-bearing structure) is 1 to 2 times the length of the trophophore with a single main axis. Both the sporophore and the trophophore arise from an erect subterranean stem. Spores mature primarily in late June and July. Similar to other Botrychium species, the tiny, lightweight spores may be disseminated by wind, water, or possibly by animal vectors (Zika et al. 1995).

Surveys and field identification of moonworts are complicated by their biology. The plants are small, difficult to find, and are usually scarce. They cannot be positively identified in their immature states. Fronds may appear above ground during some growing seasons, or may not appear at all during unfavorable seasons (Vanderhorst 1997). Botrychium lineare was initially described in 1994 and is considered to be one of the more distinctive of the moonworts (Wagner and Wagner 1994). The nearest relative of B. lineare is thought to be B. campestre, a widespread species that is typically found at lower elevations (Wagner and Wagner 1994). Recent genetic studies have shown that although B. lineare is closely related to B. campestre, it is a distinct taxon (Farrar 2000). The B. lineare populations in Colorado, Oregon, Montana, and Washington are all genetically distinct from one another, which suggests a long period of isolation that is consistent with truly rare species (Donald Farrar, Iowa State University, in litt. 2000).

In the United States, Botrychium lineare is currently known from a total of nine populations: three in Colorado (El Paso and Lake counties), two in Oregon (Wallowa County), three in Montana (Glacier County), and one in Washington (Ferry County). In addition to the nine currently known B. lineare populations, there are four historic B. lineare population sites in the United States and two in Canada. Populations previously known from Idaho (Boundary County), Montana (Lake County), California (Fresno County), Colorado (Boulder County), and Canada (Quebec and New Brunswick), have not been seen for at least 20 years and may be extirpated (Wagner and Wagner 1994). The 90-day petition finding for this species (65 FR 30048) mentions a population previously known from Inyo County, California. However, we believe that the information regarding the location of this population (as published in Wagner and Wagner 1994) is incorrect, and that this site is probably in Fresno, not Inyo, County (Tim Thomas, Service, pers. comm. 1999).

The total number of individuals for all 9 occupied sites is about 190 (Edna Rey-Vizgirdas, Service, in litt. 2000). However, this number should be viewed as an estimate since Botrychium species do not always come up every year and exist below ground for most of their life cycle. Populations range in size from 2 to 100 individuals (E. Rey-Vizgirdas, in litt. 2000). Only 3 populations contain more than 15 individuals. Of the three largest populations, two are found in Montana (Glacier National Park and Blackfeet Indian Reservation) and one occurs in Colorado (Pikes-San Isabel National Forest). Of the remaining six B. lineare populations, four occur on Federal land, including the Pike-San Isabel National Forest (Colorado), Glacier National Park (Montana), Wallowa-Whitman National Forest (Oregon), and Colville National Forest (Washington). One population occurs on private land in Lostine Canyon, Oregon, which is a private inholding within the Wallowa-Whitman National Forest. The B. lineare site in Lake County, Colorado, is currently only known from a herbarium specimen consisting of two B. lineare plants collected in 1992 at approximately 3,243 meters (m) (10,640 feet (ft)) near Leadville, Colorado. This specimen was previously misidentified as B. minganense (Toby Spribille, Kootenai National Forest, in litt. 2000). No B. lineare plants were found at this site when it was surveyed in August 2000 (T. Spribille, in litt. 2000).

All Botrychium species are believed to be obligately dependent on mycorrhizal fungi (the symbiotic association of a fungus with the roots of a vascular plant) throughout their life cycle. A fungal associate is present within the plant at the earliest stages of development, and there are no reports of successful completion of the Botrychium 's life cycle without mycorrhizal fungi. Very little information exists regarding the specificity or habitat requirements of the mycorrhizal fungi that are associated with moonworts (Vanderhorst 1997). Similar to orchids, Botrychium species can remain dormant for 1 or more years, and cannot be identified with certainty in their immature stages. The ecology of moonworts and their vulnerability to management activities such as prescribed fire are not well understood (Zika et al. 1995; Vanderhorst 1997).

The habitat for Botrychium lineare has been described as “deep grass and forbs of meadows, under trees in woods, and on shelves on limestone cliffs, mainly at higher elevations' (Wagner and Wagner 1994), but they also state that to describe a typical habitat for this species would be problematic since the known sites are so different. A specific habitat description for the species is difficult because of its current and historically disjunct distribution ranging from sea level in Quebec to nearly 3,000 m (9,840 ft) in Boulder County, Colorado. Botrychium spores are small and lightweight enough to be carried by air currents. This dispersal mechanism may explain the broad and often disjunct distribution patterns exhibited by moonworts (Vanderhorst 1997).

This species is found in a variety of montane forest or meadow habitats. Three of the known Montana Botrychium lineare populations occur on roadsides in early seral habitat (i.e., open habitat dominated by low-growing forbs (herbs) rather than shrubs or trees) (T. Spribille, in litt. 2000). Other B. lineare sites occur in grass-to forb-dominated openings in forests characterized by cone-bearing trees such as pine, spruce, and fir species (Paula Brooks, Wallowa-Whitman National Forest, in litt. 2000). At these occupied sites, B. lineare occurs with numerous associated species including Fragaria virginiana (strawberry), Antennaria spp. (pussy-toes), Galium boreale (northern bedstraw), Potentilla spp. (cinquefoil), Symphoricarpos albus (snowberry), Vaccinium spp. (huckleberry), Calamagrostis spp. (reedgrass), Festuca spp. (fescue), Picea engelmannii (Engelmann spruce), Thuja plicata (western red cedar), Pseudotsuga menziesii (Douglas-fir), Pinus ponderosa (ponderosa pine), Pinus contorta (lodgepole pine), and Populus tremuloides (aspen) (Steve Tapia, Pike-San Isabel National Forest, in litt. 2000; Kathleen Ahlenslager, Colville National Forest, in litt. 2000; E. Rey-Vizgirdas, pers. obs., 2000). Other Botrychium species, including B. ascendens (upward-lobed moonwort), B. crenulatum (wavy moonwort), B. minganense (Mingan Island moonwort), B. lunaria (common moonwort), and B. montanum (mountain moonwort), may also occur within or near habitat occupied by B. lineare. It is common for several Botrychium species to occur together in what has been called “genus communities” by researchers, a sympatric pattern of distribution which is unexplained (Vanderhorst 1997).

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

A. The present or threatened destruction, modification, or curtailment of its habitat or range. Botrychium lineare is threatened by impacts associated with recreational activities. For example, since the Hurricane Creek B. lineare site (Wallowa-Whitman National Forest) is adjacent to a popular hiking and pack trail, it may be affected by recreational impacts such as trampling or campfires. This site has been used for camping since it is relatively flat and close to the trailhead, and campfire rings were observed in the area (P. Brooks, pers. comm. 2000). The Hurricane Creek B. lineare population may also be threatened by livestock trampling (i.e., by pack animals), erosion, and exotic weeds (Oregon Natural Heritage Program 1999). The Lostine Canyon site, which occurs on a private inholding within the Wallowa-Whitman National Forest, is potentially threatened by development, timber harvest, and recreational activities (P. Brooks, pers. comm. 2000).

Two Botrychium lineare sites, one in Glacier National Park and one on the Blackfeet Indian Reservation in Montana, are located on roadsides where they may be affected by road maintenance activities, herbicide spraying, mowing, or by vehicles that pull off the road to look at wildlife (T. Spribille, in litt. 2000; Tara Williams, Glacier National Park, in litt. 2000). Although such activities are ongoing and have likely affected these sites in the past, the degree of disturbance and the timing of these activities may affect the survival and reproduction of this species. For example, road maintenance activities that occur prior to spore maturation and dispersal could adversely affect the reproduction of B. lineare . Herbicide spraying recently conducted along the road where B. lineare occurs on the Blackfeet Indian Reservation killed much of the roadside vegetation (Mary Weatherwax, Blackfeet Environmental Office, pers. comm. 2000). This site is the largest known B. lineare population and contains 100 plants (T. Spribille, in litt. 2000). The effects of this spraying on B. lineare are currently unknown. Future surveys should provide more information on the status of this population. The residual effect of herbicide spraying on B. lineare is unknown. Some herbicides are known to be resident in the soil for long periods of time, affecting the plants that persist there (65 FR 7339).

The Botrychium lineare site in Lake County, Colorado (near Leadville) is apparently located within a Superfund site (T. Spribille, in litt. 2000). This site is currently threatened by activities and associated disturbance related to the construction of a concrete conduit. An asphalt bike path through the upper portion of the site was completed in July 2000, and major construction and excavation to install the concrete conduit was observed in August 2000. Although other Botrychium species, including B. lunaria and B. minganense, were found at this site, no B. lineare plants were observed despite intensive surveys conducted in August 2000 (T. Spribille, in litt. 2000).

Of the two Botrychium lineare populations on the Pike-San Isabel National Forest (Colorado), the larger population (based on number of individuals) occurs in a meadow with a utility pole (power line) approximately 30 m (100 ft) from the Pikes Peak toll road. Maintenance of this power line could potentially threaten the B. lineare population, but such maintenance would have to be coordinated with Forest staff (S. Tapia, in litt. 2000). Although the toll road itself is heavily used, the B. lineare site is located along the lower half of the road and receives little recreational use (S. Tapia, pers. comm. 1999).

Habitat succession and fire suppression may threaten Botrychium lineare. However, the relationship of habitat succession and fire suppression to the persistence of B. lineare is unclear. For example, in a biological assessment for sensitive plants in the Lostine River canyon, a U.S. Forest Service (Forest Service) botanist notes that “ Botrychium species seem to be found in areas that receive natural disturbances such as fire and landslides but we are not yet able to predict what disturbance interval or successional stage best suits them” (Hustafa 1999). Controlled (prescribed) fires or wildfires could also affect habitat for B. lineare , but the response of this species to fire is not currently known. In some cases, wildfires or controlled fires create high ground temperatures which may sterilize the soil and eliminate fungal species that are necessary for the survival of moonworts (Zika 1992). We are not aware of any plans to implement controlled burning programs in B. lineare habitat at this time.

B. Overutilization for commercial, recreational, scientific, or educational purposes. The plant is not a source for human food, nor is it currently of commercial horticulture interest. Therefore, overutilization is not considered to be a threat to this species at the present time.

C. Disease or predation. While disease is not currently known to be a threat to Botrychium lineare, populations may be affected by grazing by livestock or wildlife. The specific effects of grazing on the species are unknown, although if grazing by livestock or wildlife species occurs prior to the maturation and release of spores, the capacity for sexual reproduction of affected plants may be compromised. For example, the proximity of both B. lineare populations in Oregon to trails and developed recreation sites could result in grazing by horses or other domestic animals. One B. lineare site (on the Colville National Forest) occurs within a grazing allotment but is fenced to exclude livestock (K. Ahlenslager, in litt. 2000). Although open range grazing is common on the Blackfeet Indian Reservation, the B. lineare population on the Reservation appeared to be ungrazed when it was discovered in July 2000 by a Forest Service botanist (T. Spribille, in litt. 2000). Botrychium lineare has not been observed in areas with obvious disturbance by livestock (K. Ahlenslager, in litt. 2000; T. Spribille, in litt. 2000).

D. The inadequacy of existing regulatory mechanisms. Botrychium lineare is considered a sensitive species in Regions 2, 5, and 6 of the Forest Service, which include extant and historical B. lineare sites found in Colorado, Oregon, Washington, and California (Forest Service 1999, 2000; Joanna Clines, Sierra National Forest, in litt. 2000). The Forest Service has regulations that address the need to protect these sensitive species, as well as candidate, and federally listed species (e.g., the National Forest Management Act). Forest Service Regions 1 and 4, which include extant and historical sites found in Montana and Idaho, do not have B. lineare on their regional sensitive species lists (Teresa Prendusi, Forest Service, in litt. 2000; Steve Shelly, Forest Service, in litt. 2000); the species in these regions, therefore, is not given any special consideration. However, the Forest Service does prohibit the collection of any native plants without a permit on Forest Service lands. Botrychium lineare is not on Canada's list of threatened or vulnerable species, so there is no special protection for this species in Canada (Canadian Wildlife Service 2000).

Monitoring of some (but not all) Botrychium lineare populations on Federal lands has been initiated. Monitoring helps to identify threats and management actions that may be necessary to control habitat degradation and protect the species. Only one site, which occurs on the Colville National Forest, has been fenced to protect the species from livestock grazing. However, some of the B. lineare sites on Federal lands are threatened by exotic weeds, herbicide spraying, trampling, and road construction and maintenance (see Factors A and E for additional information).

The National Park Service (Park Service) has policies to promote the conservation of federally listed or candidate species and other rare or sensitive species within park boundaries (T. Williams, in litt. 2000). However, as discussed previously, the two Botrychium lineare sites in Glacier National Park are located on roadsides where they may be subject to road maintenance activities or potential damage from vehicles. Therefore, long-term protection of these sites may be difficult due to their location (i.e., adjacent to roads, which are potentially a source of recurring disturbance).

Although Botrychium lineare is considered to be rare and imperiled by the State natural heritage programs in Colorado, Montana, Oregon, and Washington, the State heritage program rankings are not legal designations and do not confer State regulatory protection to this species.

E. Other natural or manmade factors affecting its continued existence. Non-native plant species may threaten habitat occupied by Botrychium lineare . Exotic species have been observed in the vicinity of B. lineare populations in Colorado (S. Tapia, in litt. 2000), Montana (T. Spribille, in litt. 2000), Oregon (Oregon Natural Heritage Program 1999), and Washington (K. Ahlenslager, in litt. 2000). Non-native plant species can compete with native plant species for resources such as space, nutrients, and water, and can replace them. As a result, the effects of non-native species may be especially serious for native taxa that have extremely small population sizes, such as B. lineare .

The amount of habitat occupied by Botrychium lineare is extremely small. Total habitat size for all extant sites, except for the Leadville and one Pikes Peak, Colorado, site, is approximately 1.15 hectares (ha) (2.85 acres (ac)), and nearly all of the sites are smaller than 465 square meters (5000 square feet). The B. lineare plants at the smaller Pikes Peak site have not been located in the last few years, and only two plants were previously known, so the actual amount of occupied habitat is likely to be extremely small. No B. lineare plants were found at the Leadville site in 2000, so it is not possible to estimate the amount of occupied habitat. Of the two B. lineare sites in Oregon, the Lostine Canyon site occupies an area of approximately 10 × 10 m (30 × 30 ft) (Wagner and Wagner 1994), and the Hurricane Creek site is found in an area up to 1 ha (2.5 ac) in size (Oregon Natural Heritage Program 1999). The site in Washington (on the Colville National Forest) occupies an area of approximately 15 × 30 m (50 × 100 ft) (K. Ahlenslager, in litt. 2000). The larger of the two B. lineare populations on the Pike-San Isabel National Forest occupies an area of approximately 35 × 10 m (115 × 30 ft) (Carpenter 1996a, 1996b; Colorado Natural Heritage Program 1999). Botrychium lineare populations range in size from 2 to 100 plants, with only 3 populations supporting more than 15 individuals.

The small size of existing Botrychium lineare populations makes this species vulnerable to extirpation due to random naturally occurring events. A single random event could extirpate a substantial portion or all of the individuals at a given site. Also, changes in gene frequencies within small, isolated populations can lead to a loss of genetic variability and a reduced likelihood of long-term viability (Franklin 1980; Soulé 1980; Lande and Barrowclough 1987).

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by the species. Only nine populations of Botrychium lineare are known to exist, and the small amount of occupied habitat and few individuals, combined with ongoing threats, make this species vulnerable to extinction. All of the remaining sites that support B. lineare are small and fragmented, and the various sites are vulnerable to impacts from factors including herbicide use, recreational activities, competition from non-native vegetation, road construction and maintenance, development, timber harvest, and incidental loss from trampling or grazing by wildlife or livestock. Also, all of these populations are particularly susceptible to extinction from random events because of their extremely small size. Existing regulatory mechanisms are inadequate to protect this taxon.

We conclude that the overall magnitude of threats to Botrychium lineare throughout its range is moderate and the overall immediacy of these threats is non-imminent. Botrychium lineare is considered a species without subspecies classification. Pursuant to our Listing Priority Guidance (48 FR 43098), a species for which threats are moderate and non-imminent is assigned a Listing Priority Number of 11. While we conclude that listing of Botrychium lineare is warranted, an immediate proposal to list is precluded by other higher priority listing actions. During fiscal year 2001, we must spend nearly all of our Listing Program funding to comply with court orders and judicially approved settlement agreements, which are now our highest priority actions. Botrychium lineare will be added to the list of candidate species upon publication of this notice of 12-month finding. We will continue to monitor the status of the slender moonwort and other candidate species. Should an emergency situation develop with one or more of these species, we will act to provide immediate protection, if warranted.

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

The primary authors of this document are Edna Rey-Vizgirdas, U.S. Fish and Wildlife Service, Snake River Basin Office (see ADDRESSES section), and Barbara Behan, U.S. Fish and Wildlife Service, Regional Office, 911 N.E. 11th Avenue, Portland, Oregon 97232.

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

The Hawaiian archipelago consists of eight main islands and the numerous shoals and atolls of the northwestern Hawaiian Islands. The islands were formed sequentially by basaltic lava that emerged from a hot spot in the earth’s crust located near the current southeastern coast of the island of Hawai‘i (Stearns 1985). O‘ahu, the third oldest main island, is 2.5 million to 3.5 million years old and is heavily weathered. O‘ahu has two principal mountain ranges, the Ko‘olau and the Wai‘anae Mountains, separated by a gently sloping plateau. The Ko‘olau Mountains extend 60 kilometers (km) (37 miles (mi)) from northwest to southeast along the eastern half of the island. The windward (northeastern) slope of these mountains is characterized by steep cliffs and short ridges less than 6 km (4 mi) long. The leeward (southwestern) slope is characterized by parallel ridges as long as 18 km (11 mi), alternating with steep-sided stream valleys. The peak elevation in the Ko‘olau Mountains occurs at Pu‘u Kõna hua-nui (955 meters (m); 3,105 feet (ft)). The drier Wai‘anae Mountains run from northwest to southeast in a 32-km (20-mi) arc along the western half of O‘ahu, in the rainshadow of the Ko‘olau Range. Both the windward and leeward slopes of the Wai‘anae Mountains are characterized by steep cliffs and ridges less than 5 km (3 mi) in length. The peak elevation occurs at Mt. Ka‘ala (1,230 m; 4,025 ft). Approximately 36 percent (134,300 acres) of O‘ahu is forested (Buck et al. 1988). Of these forested lands, approximately 49 percent is primarily native forest dominated by koa ( Acacia koa ) and ‘õhi‘a ( Metrosideros polymorpha ), with the remainder, 51 percent, dominated by introduced species, e.g., common guava ( Psidium guajava ), strawberry guava ( P. cattleianum ), christmasberry ( Schinus terebinthifolius ), mango ( Mangifera indica ), and several species of eucalypts (Buck et al. 1988).

The O‘ahu ‘elepaio ( Chasiempis sandwichensis ibidis ) is a small forest-dwelling bird (12.5 grams (0.43 ounces)) average weight; 15 centimeters (6 inches) total body length), and is a member of the monarch flycatcher family Monarchidae (VanderWerf 1998). It is dark brown above and white below, with light brown streaks on the breast. The tail is long (6.5 cm, 2.6 in.) and often held up at an angle. Adults have conspicuous white wing bars, a white rump, and white tips on the tail feathers. The throat is white with black markings in both sexes, but males tend to have more black than females, especially on the chin. Juveniles and subadults are rufous above and on the breast, with a white belly and rusty wing-bars. The bill is medium-length, straight, and black, with the base of the lower mandible bluish-gray in adults and yellow in juveniles. The legs and feet are dark gray and the iris is dark brown. Males average approximately 10 percent larger than females in wing length, tarsus length, and weight, but bill length does not differ between the sexes (VanderWerf 1998).

Three subspecies of ‘elepaio are recognized, each endemic to a single island: The O‘ahu ‘elepaio; the Hawai‘i ‘elepaio ( Chasiempis sandwichensis sandwichensis ); and the Kaua‘i ‘elepaio ( C. s. sclateri ). The forms on different islands are similar in ecology and behavior, but differ somewhat in coloration and vocalizations (Conant 1977, van Riper 1995, VanderWerf 1998). The taxonomy used in this rule follows Pratt et al. (1987) and Pyle (1997), in which all forms are regarded as subspecies, but the form on each island was originally described as a separate species. The O‘ahu form was known as C. s. gayi (Wilson 1891) until Olson (1989) pointed out that the epithet ibidis (Stejneger 1887) has priority. The ‘elepaio comprises a monotypic genus that is endemic to the Hawaiian archipelago (VanderWerf 1998). Its closest relatives are other monarch flycatchers from the Pacific region (Pratt et al. 1987, Sibley and Ahlquist 1985).

O‘ahu ‘elepaio occur in a variety of forest types, but are most common in riparian vegetation along streambeds and in mesic forest with a tall canopy and a well-developed understory (Shallenberger and Vaughn 1978, VanderWerf et al. 1997). Population density is roughly 50 percent lower in shorter dry forest on ridges (VanderWerf et al. 1997). They are not currently found in very wet, stunted forest on windswept summits or in very dry shrub land, but these areas may be used by individuals dispersing among populations. Forest structure appears to be more important to ‘elepaio than plant species composition (VanderWerf et al. 1997), and unlike many Hawaiian forest birds, ‘elepaio have adapted well to disturbed forest composed of introduced plants (Conant 1977, VanderWerf et al. 1997, VanderWerf 1998). Fifty-five percent of the current range is dominated by introduced plants and 45 percent is dominated by native plants (Hawai‘i Heritage Program 1991). This observation does not imply that ‘elepaio prefer introduced plant species, but simply reflects a preference by ‘elepaio for riparian vegetation in valleys and the high degree of habitat disturbance and abundance of introduced plants in riparian areas (VanderWerf et al. 1997). Of the 45 percent dominated by native plants, 23 percent is categorized as wet forest, 17 percent as mesic forest, and 5 percent as dry forest, shrub land, and cliffs (Hawai‘i Heritage Program 1991).

Plant species composition in ‘elepaio habitat varies considerably depending on location and elevation, but some of the most common native plants in areas where ‘elepaio occur are ‘õhi‘a, pa pala ke pau ( Pisonia umbellifera ), lama ( Diospyros sandwicensis ), ma maki ( Pipturus albidus ), kaulu ( Sapindus Oahuensis ), hame ( Antidesma platyphyllum ), and ‘a la Pouteria sandwicensis ), and some of the most common introduced plants are guava, strawberry guava, kukui ( Aleurites moluccana ), mango, Christmasberry, and ti ( Cordyline terminalis ) (VanderWerf et al. 1997, VanderWerf 1998).

The current population of O‘ahu ‘elepaio is approximately 1,982 birds distributed in six core subpopulations and several smaller subpopulations (Table 1, Figure 1; VanderWerf et al. in press). The only previous population estimate (200-500 birds; Ellis et al. 1992) was not accurate because little information was available when the estimate was made. The number of birds is divided about evenly between the Wai‘anae Mountains in the west and the Ko‘olau Mountains in the east, with three core subpopulations in each mountain range. At least 10 tiny remnant subpopulations consisting mostly or entirely of males remain in both the Wai‘anae and Ko‘olau mountains (Table 1). These subpopulations were much larger or continuous with other subpopulations in the past, but because of their very small size, skewed sex ratio, and geographic isolation, these relicts likely will disappear in a few years as the last adults die.

The breeding population, about 1,774 birds, is less than the total population because of a male-biased sex ratio; only 84 percent of territorial males have mates in large populations (n = 147, E. VanderWerf unpubl. data), and many small, declining populations contain mostly males (Table 1). The effective population size is probably even smaller than the breeding population because of the geographically fragmented distribution (Grant and Grant 1992). Natal dispersal distances in èlepaio are usually less than one km (0.62 mi) and adults have high site fidelity (VanderWerf 1998), but most èlepaio populations on O‘ahu are separated by many kilometers of unsuitable urban or agricultural habitat. There may be some exchange among subpopulations within each mountain range, but dispersal across the extensive pineapple fields that separate the Wai‘anae and Ko‘olau mountains is unlikely. While the current distribution superficially appears to constitute a metapopulation, it is uncertain if dispersal occurs among subpopulations.

Amendments to the Magnuson-Stevens Act in 1996 set forth new mandates for NMFS and Regional Fishery Management Councils (Regional Councils) to identify and protect important marine and anadromous fish habitat. The Regional Councils, with assistance from NMFS, were required to delineate EFH for all managed species. EFH is defined in the Magnuson-Stevens Act as “...those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity.” In response to the amended Magnuson-Stevens Act and based on guidelines for the EFH contents of FMPs (50 CFR part 600 subpart J), the North Pacific Fishery Management Council (Council) completed preparation of the following five EFH FMP amendments in 1998: Amendment 55 to the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area; Amendment 55 to the FMP for Groundfish of the Gulf of Alaska; Amendment 8 to the FMP for the King and Tanner Crab Fisheries in the Bering Sea/Aleutian Islands; Amendment 5 to the FMP for Scallop Fisheries Off Alaska; and Amendment 5 to the FMP for the Salmon Fisheries in the EEZ Off the Coast of Alaska (Amendments 55/55/8/5/5). These EFH FMP amendments were reviewed and approved by the Secretary of Commerce and took effect on January 20, 1999 (64 FR 20216). These FMP amendments identified EFH for over 130 managed species.

In June 1999, several environmental and fishing groups challenged the scope and substance of the environmental assessment (EA) prepared for Amendments 55/55/8/5/5 ( American Oceans Campaign et al. v. Daley , Civ. No. 99-982 (D.D.C.)). On September 14, 2000, the U.S. District Court issued an opinion finding the EA insufficient in scope and analytical substance and requiring NMFS to prepare an analysis that is legally sufficient under NEPA. Therefore, NMFS is re-evaluating the EFH components originally developed as part of Amendments 55/55/8/5/5. The SEIS will supersede the EA previously prepared in support of Amendments 55/55/8/5/5.

The proposed action to be addressed in the SEIS is the development of the mandatory EFH provisions of the affected FMPs as described in section 303(a)(7) of the Magnuson-Stevens Act and based on the guidance in 50 CFR part 600 subpart J. The following three types of actions will be specifically analyzed: (1) Identify and describe EFH for managed species; (2) identify HAPCs within EFH; and (3) minimize, to the extent practicable, adverse effects on EFH caused by fishing. The scope of the new SEIS will cover all of the required EFH components of FMPs. NMFS will consider the need to revise the previously approved EFH provisions of these FMPs based on any available new scientific information, and the revised analysis of EFH alternatives.

The EA prepared for Amendments 55/55/8/5/5 covered all five FMPs. For this new NEPA analysis, a single SEIS may be prepared that analyzes the required EFH components for all five FMPs or multiple SEISs may be prepared that analyze the required EFH components for individual FMPs.

NMFS will evaluate a range of alternatives for developing mandatory EFH provisions for the Council’s five FMPs. NMFS is seeking information from the public through the scoping process on the range of alternatives to be analyzed and on the environmental, social, and economic issues to consider in the analysis. Alternatives will be developed based on significant issues raised during the scoping process.

Alternatives for the designation of EFH may include those identified in the EA for Amendments 55/55/8/5/5, plus additional alternatives. Alternatives already identified include: (1) No action (no designation of EFH); (2) EFH is all habitat within a general distribution for a species life stage; and (3) EFH is a subset of all habitat within a general distribution, e.g., areas of known concentration. Other possible EFH alternatives could include a habitat-based approach, a core habitat approach (comparable to critical habitat for endangered species), and an ecosystem approach that may address prey and reproductive associations.

HAPCs are subsets of EFH. HAPCs are those areas of special importance that may require additional protection from adverse effects. HAPCs are defined on the basis of the ecological importance, sensitivity to human-induced environmental degradation, stress to the habitat from development activities, and rarity of the habitat. Amendments 55/55/8/5/5 identified 3 types of habitat as HAPCs (living substrates in shallow water, living substrates in deep waters, and freshwater areas used by anadromous fish) but did not map or designate specific areas as HAPCs. In August 1998, the Council received 6 proposals concerning HAPCs. The proposals included the following: (1) Identifying where living substrate in shallow water and deep water occur in the BSAI and GOA; (2) adding seamounts/pinnacles, ice edge, shelf break, and biologically consolidated fine-grained sediments as types of HAPC; (3) developing a procedure to assess potential adverse impacts to HAPCs; (4) nominating Prince William Sound black hole, Chirikov Basin, and Kodiak red king crab areas as HAPCs; (5) protecting important habitat for C. bairdi crab by establishing a no-fishing zone in a specified area of the Bering Sea; and (6) establishing the Kodiak red king crab areas as an HAPC. These proposals and/or others may be investigated as part of the EFH SEIS.

An HAPC EA prepared by Council staff in 2000 considered protection measures for corals and sponges. Specific areas were proposed for protection and stakeholder meetings were held. Currently, no specific actions from these meetings are being evaluated. An HAPC alternative to protect corals and sponges is possible in the SEIS.

The alternatives analysis will identify a range of approaches that could be taken to minimize any potential adverse effects of fishing on EFH. The range of alternatives may include measures such as banning specific gear types, closing areas to fishing, rotational closure areas, protected areas or other measures. A no-action alternative will be included as an alternative. The range of alternatives will be developed based on comments NMFS receives during the scoping process.

NMFS will work with the Council throughout the development of the SEIS. The Council has formed an EFH Oversight Committee that will help keep the Council an integral part of the NEPA process for EFH. Council staff will assist in the development of the SEIS. The public will be able to provide oral and written comments on EFH at Council meetings.

A principal objective of the scoping and public involvement process is to identify a reasonable range of management alternatives that, with adequate analysis, will delineate critical issues and provide a clear basis for both distinguishing between those alternatives and selecting a preferred alternative. NMFS is seeking written comments on the scope of issues that should be addressed in the SEIS. Also, NMFS invites specific comment on the appropriate extent of EFH and HAPCs for Council-managed species and on the scientific basis for EFH and HAPC designations. NMFS also solicits any new information related to the impacts of fishing and non-fishing activities on EFH and HAPCs for fishery resources managed under the Council’s FMPs and possible management measures designed to mitigate adverse fishing impacts.

The public is invited to assist NMFS and the Council in developing the scope of alternatives to be analyzed. The first public scoping meeting will be held on: Monday, June 4, 2001, from 7-9 p.m., at the Fishery Industrial Technology Center, 118 Trident Way, Kodiak, AK.

Additional scoping meetings will be held in other communities as follows:

1. Friday, June 8, 2001, Unalaska, City Hall, Council Chambers, 245 Raven Way, 4 to 8 p.m., Unalaska, AK;

2. Monday, June 11, 2001, Anchorage, Z. J. Loussac Library, public conference room, level 1, 3600 Denali Street, 2:30 to 6:30 p.m., Anchorage, AK;

3. Tuesday, June 19, 2001, Seattle, Alaska Fisheries Science Center, room 2079, 7600 Sand Point Way NE, 1:30 to 5:30 p.m., Seattle, WA;

4. Wednesday, June 20, 2001, Juneau, Federal Building, room 445, 709 W. 9th Street, 2 to 5:30 p.m. and Centennial Hall Convention Center, Egan Room, 101 Egan Drive, 7 to 9 p.m., Juneau, AK; and

5. Thursday, June 21, 2001, Sitka, Harrigan Centennial Hall, Maksoutoff Room, 330 Harbor Drive, 2 to 5:30 and 7 to 9 p.m., Sitka, AK.

These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Cindy Hartmann (see ADDRESSES ), (907) 586-7585, at least 5 days prior to the meeting date.