Federal Register document 01-7420, Airspace Docket No. 00-AEA-05FR, published on March 28, 2001 (66 FR 16848), established Class E airspace at Rome, NY. An error was discovered in the geographic coordinates for the Griffiss Airpark, Rome, NY. This action corrects that error.

In a notice published in the Federal Register of September 13, 2000 (65 FR 55264), FDA announced that a food additive petition (FAP 0A4721) had been filed by the Electric Power Research Institute, Agriculture and Food Technology Alliance, 2747 Hutchinson Ct., Walnut Creek, CA 94598. The petition proposed to amend the food additive regulations in part 173 (21 CFR part 173) to provide for the safe use of ozone in gaseous and aqueous phases as an antimicrobial agent for the treatment, storage, and processing of foods.

The proposed use would include the use of this additive on raw agricultural commodities (RACs) in the preparing, packing, or holding of such commodities for commercial purposes, consistent with section 201(q)(1)(B)(i) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 321(q)(1)(B)(i)), as amended by the Antimicrobial Regulation Technical Corrections Act of 1998 (ARTCA) (Public Law 105-324). The petitioner is not proposing that the additive be intended for use for any application under section 201(q)(1)(B)(i)(I), (q)(1)(B)(i)(II), or (q)(1)(B)(i)(III) of the act, which use would be subject to regulation by the Environmental Protection Agency (EPA) as a pesticide chemical. The proposed use of the additive includes the use to reduce the microbial contamination on RACs. Under ARTCA, the use of ozone as an antimicrobial agent on RACs in the preparing, packing, or holding of such RACs for commercial purposes, consistent with section 201(q)(1)(B)(i) of the act, and not otherwise included within the definition of “pesticide chemical” under section 201(q)(1)(B)(i)(I), (q)(1)(B)(i)(II), or (q)(1)(B)(i)(III) is subject to regulation by FDA as a food additive.

Although this use of ozone as an antimicrobial agent on RACs is regulated under section 409 of the act (21 U.S.C. 348) as a food additive, the intended use may nevertheless be subject to regulation as a pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Therefore, manufacturers intending to market ozone for such use should contact the EPA to determine whether this use requires a pesticide registration under FIFRA.

FDA has evaluated data in the petition and other relevant material. Based on this information, the agency concludes that the proposed use of the additive is safe, that the additive will achieve its intended technical effect, and therefore, that the regulation in part 173 should be amended as set forth below.

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

The agency has carefully considered the potential environmental effects of this rule as announced in the notice of filing for FAP 0A4721. No new information or comments have been received that would affect the agency’s previous determination that there is no significant impact on the human environment and that an environmental impact statement is not required.

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

Any person who will be adversely affected by this regulation may at any time file with the Dockets Management Branch (address above) written objections by July 26, 2001. Each objection shall be separately numbered, and each numbered objection shall specify with particularity the provisions of the regulation to which objection is made and the grounds for the objection. Each numbered objection on which a hearing is requested shall specifically so state. Failure to request a hearing for any particular objection shall constitute a waiver of the right to a hearing on that objection. Each numbered objection for which a hearing is requested shall include a detailed description and analysis of the specific factual information intended to be presented in support of the objection in the event that a hearing is held. Failure to include such a description and analysis for any particular objection shall constitute a waiver of the right to a hearing on the objection. Three copies of all documents are to be submitted and are to be identified with the docket number found in brackets in the heading of this document. Any objections received in response to the regulation may be seen in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.

1. The authority citation for 21 CFR part 173 continues to read as follows:

Ozone (CAS Reg. No. 10028-15-6) may be safely used in the treatment, storage, and processing of foods, including meat and poultry (unless such use is precluded by standards of identity in 9 CFR part 319), in accordance with the following prescribed conditions:

(a) The additive is an unstable, colorless gas with a pungent, characteristic odor, which occurs freely in nature. It is produced commercially by passing electrical discharges or ionizing radiation through air or oxygen.

(b) The additive is used as an antimicrobial agent as defined in § 170.3(o)(2) of this chapter.

(c) The additive meets the specifications for ozone in the Food Chemicals Codex , 4th ed. (1996), p. 277, which is incorporated by reference. The Director of the Office of the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies are available from the National Academy Press, 2101 Constitution Ave. NW., Washington, DC 20055, or may be examined at the Office of Premarket Approval (HFS-200), Center for Food Safety and Applied Nutrition, Food and Drug Administration, 200 C St. SW., Washington, DC, and the Office of the Federal Register, 800 North Capitol St. NW., suite 700, Washington, DC.

(d) The additive is used in contact with food, including meat and poultry (unless such use is precluded by standards of identity in 9 CFR part 319), in the gaseous or aqueous phase in accordance with current industry standards of good manufacturing practice.

(e) When used on raw agricultural commodities, the use is consistent with section 201(q)(1)(B)(i) of the Federal Food, Drug, and Cosmetic Act (the act) and not applied for use under section 201(q)(1)(B)(i)(I), (q)(1)(B)(i)(II), or (q)(1)(B)(i)(III) of the act.

This document contains amendments to 26 CFR parts 1, 31, 35, 36, 40, 301, and 601 relating to Federal tax deposits under section 6302(c) of the Internal Revenue Code (Code). On December 26, 2000, temporary regulations (TD 8918) relating to the removal of Federal Reserve Banks as federal depositaries were published in the Federal Register (65 FR 81356). A notice of proposed rulemaking that proposed the removal of Federal Reserve Banks as federal depositaries was published in the Federal Register for the same day (65 FR 81453). No comments were received from the public in response to the notice of proposed rulemaking.

These final regulations, which permanently remove Federal Reserve Banks as authorized depositaries for Federal tax deposits, adopt the rules of the proposed regulations and remove the corresponding temporary regulations. The term Federal Reserve Bank includes twelve banks and their approximately two dozen branches that constitute the nation's central banking system. The term does not include the thousands of federally and state chartered banks that are recognized as members of the Federal Reserve System. Accordingly, these final regulations do not affect Federal Tax Deposits (FTDs) made with paper coupons at any of the more than 10,000 financial institutions nationwide that serve as Treasury Tax and Loan (TT&L) depositaries. Deposits made through the Electronic Federal Tax Payment System (EFTPS) are also not affected.

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, the notice of proposed rulemaking preceding these regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

The principal author of these regulations is Brinton T. Warren of the Office of Associate Chief Counsel, Procedure and Administration (Administrative Provisions and Judicial Practice Division). However, other personnel from the IRS and Treasury Department participated in their development.

Accordingly, and under the authority of 26 U.S.C. 7805 and 5 U.S.C. 301, 26 CFR parts 1, 31, 35, 36, 40, 301 and 601 are amended as follows:

Copies of this notice are available for downloading from the Bureau of the Public Debt home page at: http://www.publicdebt.treas.gov.

On August 23, 1996, the Department of the Treasury (“we”) published a final rule to govern securities held in the commercial book-entry system, also referred to as the Treasury/Reserve Automated Debt Entry System (“TRADES”), 61 FR 43626. The regulations specify the jurisdiction whose law governs certain matters related to Treasury securities in the commercial book-entry system. Sections 357.10(c) and 357.11(d) of the regulations provide that if the jurisdiction is a state that has not adopted Revised Article 8, then the applicable law is the law of that state as though Revised Article 8 had been adopted by that state. “Revised Article 8” is defined in the regulations as the Official Text adopted by the National Conference of Commissioners on Uniform State Laws and the American Law Institute.

In the commentary to the final regulations, we stated that for the 28 states that had by then adopted Revised Article 8, the versions enacted were “substantially identical” to the uniform (official) version for purposes of the rule. We also indicated in the commentary that as additional states adopted Revised Article 8, we would provide notice in the Federal Register as to whether the enactments were substantially identical to the uniform version so that the federal application of Revised Article 8 would no longer be in effect for those states. We adopted this approach in an attempt to provide certainty in application of the rule in response to public comments.

We have subsequently published notices setting forth our determination concerning 22 additional states' enactment of Revised Article 8. See 62 FR 26, January 2, 1997; 62 FR 34010, June 18, 1997; 62 FR 61912, November 20, 1997; 63 FR 20099, April 23, 1998; 63 FR 35807, July 1, 1998; and 63 FR 50159, September 21, 1998. Thus, a total of 50 jurisdictions (including the District of Columbia and Puerto Rico, which are treated as states), have enacted statutes substantially identical to the uniform version of Revised Article 8.

At least 42 states  1 that were determined by Treasury to have statutes “substantially identical” to Revised Article 8 for purposes of the TRADES regulations, have now enacted Revised Article 9. Revised Article 9 includes conforming amendments to Article 8, and also amends provisions in Article 9 that were part of the conforming amendments to Revised Article 8. Revised Article 9 will become effective on July 1, 2001, in the vast majority of states that have enacted it.

In promulgating the final TRADES regulations, we responded to a comment asking about the potential situation where a state, after having enacted Revised Article 8 and having it deemed by Treasury as “substantially identical” to the uniform version, then amends its law in a manner that results in an unsatisfactory lack of uniformity. We stated that once Treasury has announced its determination with respect to a state's enactment of Revised Article 8, the market is entitled to rely on that decision. We further stated that in such an unlikely event as described, Treasury had the authority to take action that would result in §§ 357.10(c) and 357.11(d) being reapplied, and would publish such action in the Federal Register . In this context, one specific comment was also received concerning the revision of Article 9, which had begun at that time. The commenter noted that the revision process might lead to the result that a state could adopt provisions different than those in Revised Article 8. We stated: “Treasury does not anticipate that such an event would result in the need to reapply §§ 357.10(c) and 357.11(d). If that were necessary, Treasury would take the same action, after notice, as described herein” [i.e., publish a notice in the Federal Register ].”  2

By this notice, we affirm Treasury's prior determinations that a state statute is “substantially identical” to the uniform version of Revised Article 8, even if that state subsequently enacts the provisions of the uniform version of Revised Article 9 (with conforming amendments) that amend the uniform version of Article 8 (with conforming amendments). After review of these provisions in Revised Article 9, we see no need to reapply §§ 357.10(c) and 357.11(d) to any such state. Furthermore, consistent with the discussion above, we do not anticipate that a state's non-conforming amendments to other parts of Revised Article 9 would result in the need to reapply §§ 357.10(c) and 357.11(d). The market may rely on this determination unless Treasury publishes a notice to the contrary in the Federal Register .

We have identified several provisions in Revised Article 9 that may require technical or conforming changes to the TRADES regulations.  3 We plan to issue a rule-making document in “plain language” format, in the near future. We will coordinate with the Government Sponsored Enterprises (GSEs) and other agencies having rules modeled on the TRADES rules, in an effort to maintain consistency among all these rules.

Rhode Island has recently enacted Article 8. We note that Rhode Island's enactment of Article 8 includes revisions made by Revised Article 9 (1998), which was also enacted. We have reviewed these changes, and consistent with the discussion above, conclude that the law enacted by Rhode Island is “substantially identical” to the uniform version of Revised Article 8 for purposes of the TRADES rules. Therefore, if either § 357.10(b) or § 357.11(b) directs a person to Rhode Island, the provisions of §§ 357.10(c) and 357.11(d) of the TRADES rules are not applicable.

On February 28, 2001, we published a notice of proposed rulemaking (NPRM) entitled Anchorage Regulation; San Francisco Bay, California in the Federal Register (66 FR 12742). We did not receive any letters commenting on the proposed rule. No public hearing was requested, and none was held.

Due to changing uses of the waterways in the San Francisco Bay region—including the closure of Naval Air Station Alameda, the trend of larger ships arriving in the Bay, and the anticipated growth of faster Marine Transportation Systems—mariners have requested changes to several anchorage grounds. Recent situations have demanded increased use and space for Anchorages 8 and 9. Vessels have had to take anchor while awaiting the departure of another at berth. Periodic labor strikes and disputes have caused delays in the turnaround time of cargo, which in turn have filled the anchorages to capacity. In general, this rule allows more room for the anchorages while enhancing safer and more efficient use of the waterways through San Francisco Bay and the Carquinez Strait.

The Coast Guard conducted a Waterways Analysis and Management study of the San Pablo Bay and Carquinez Strait in late 1998. One of the recommendations of the study, which was based primarily on the comments of mariners using the waterway, was to make better use of the navigable waters of the Carquinez Strait just south-southeast of Southampton Bay. The Coast Guard has established a buoy marking the edge of the useable channel just west-southwest of Commodore Jones Point, effectively shrinking the area that is currently Anchorage 24.

Currently, safety measures for anchoring in the San Francisco Bay in a dead-ship status are addressed by individual COTP orders. The term “dead ship” refers to when a vessel's propulsion or control is unavailable for normal operations. This rule will enhance the safety of navigation in the area by designating a dead-ship anchorage, away from usual areas of navigation on the bay, and by uniformly requiring the assistance of a tugboat when anchoring in a dead ship status. Also, the owner/operator will now be able to make its own arrangements for a tug without having to gain the approval of the COTP before proceeding to the dead-ship anchorage.

We did not receive any letters commenting on the proposed rule. The final rule has not been changed from the proposed language, except to make a technical amendment. In paragraph 2.c. of the amendatory language of the NPRM, we incorrectly stated we were revising subparagraphs (e)(5), (e)(6) and (e)(17) of paragraph (d). We have corrected the incorrect reference to paragraph (d) here.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979).

The changes in the size and shape of anchorage areas are slight and the purpose is to conform to the changed use of the harbor and to make best use of available water. As for implementing the dead ship regulation, this rulemaking simply makes official in the regulation what has already been in practice.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

If your small business or organization is affected by this rule and you have questions concerning its provisions or options for compliance, please contact Lieutenant Andrew B. Cheney, U.S. Coast Guard Marine Office San Francisco Bay at (510) 437-3073.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

We have analyzed this rule under Executive Order 13132 Federalism, and have determined that this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those unfunded mandate costs. This rule will not impose an unfunded mandate.

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph 34(f) of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation. In the above referenced Coast Guard policy instruction, the Coast Guard has determined that no further environmental documentation is required when changing the size of Special Anchorage Areas or anchorage grounds, or when disestablishing or reducing the size of the Area or grounds, as in Anchorage No. 24. Because the Coast Guard is increasing the size of Anchorages No. 8 and 9, the Coast Guard has completed a Categorical Exclusion Document (CED), which is available in the docket for inspection or copying where indicated under ADDRESSES .

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, 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.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM, and under 5 U.S.C. 553(d)(3), good cause exists for making this rule effective less than 30 days after publication in the Federal Register . The permit application was not received in time to publish an NPRM followed by a final rule before the necessary effective date. Delaying this rule would be contrary to the public interest of ensuring the safety of spectators and vessels during this event and immediate action is necessary to prevent possible loss of life or property. The Coast Guard has not received any complaints or negative comments with regard to this event.

This temporary safety zone is necessary to ensure the safety of vessels and spectators from hazards associated with an air show. Entry into, transit through or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port, Chicago or the designated Patrol Commander. The designated Patrol Commander on scene may be contacted on VHF Channel 16.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). The Coast Guard expects the economic impact of this proposal to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities: the owners or operators of vessels intending to transit or anchor in a portion of Lake Michigan from 4 p.m. to 6 p.m., July 8, 2001. This regulation would not have a significant economic impact for the following reasons. The regulation is only in effect for only two hours on one day. The designated area is being established to allow for maximum use of the waterway for commercial vessels to enjoy the air show in a safe manner. In addition, commercial vessels transiting the area can transit around the area. The Coast Guard will give notice to the public via a Broadcast to Mariners that the regulation is in effect.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

We have analyzed this rule under Executive Order 13132, Federalism, and have determined that this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those unfunded mandate costs. This rule will not impose an unfunded mandate.

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.lC, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES .

We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM, and, under 5 U.S.C. 553(d)(3), good cause exists for making this rule it effective less than 30 days after publication in the Federal Register . The Coast Guard had insufficient advance notice to publish an NPRM followed by a temporary final rule. Publication of a notice of proposed rulemaking and delay of the regulation's effective date would be contrary to the public interest because immediate action is necessary to prevent possible loss of life, injury, or damage to property. The Coast Guard has not received any complaints or negative comments with regard to this event.

This temporary rule is necessary to ensure the safety of spectators and vessels during the setup, loading and launching of a fireworks display in conjunction with the City of Huron July 7, 2001, fireworks. The fireworks display will occur between 10 a.m. and 11 p.m. on July 7th.

This safety zone will encompass all waters and the adjacent shoreline of Huron River Boat Basin, Huron, Ohio, bounded by an arc of a circle with a 560-foot radius with its center in approximate position 41°23′45″ N, 082°32′55″ W. The Captain of the Port Toledo or his designated on scene representative may terminate this event.

All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on scene patrol personnel. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Toledo or his designated on scene representative. The Captain of the Port or his designated on scene representative may be contacted via VHF Channel 16.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). This finding is based on the historical lack of vessel traffic during this time of year.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which may be small entities: the owners and operators of vessels intending to transit or anchor in a portion of Huron River Boat Basin off Huron, Ohio.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This rule will be in effect for only a few hours on one day, and vessel traffic can pass safely around the safety zone.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they may better evaluate its effects on them and participate in the rulemaking process. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Marine Safety Office Toledo (see ADDRESSES. )

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal government having first provided the funds to pay those costs. This rule will not impose an unfunded mandate.

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.

The Coast Guard considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.lC, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, 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.

We have analyzed this proposed rule under Executive order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a statement of Energy Effects under Executive Order 13211.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM, and under 5 U.S.C. 553(d)(3), good cause exists for making this rule effective less than 30 days after publication in the Federal Register . The permit application did not allow sufficient time for publication of an NPRM followed by a temporary final rule effective 30 days after publication. Any delay of the effective date of this rule would be contrary to the public interest by exposing the public to the known dangers associated with fireworks displays and the possible loss of life, injury, and damage to property.

This safety zone is established to safeguard the public from the hazards associated with the launching of fireworks in Milwaukee Harbor, Milwaukee, Wisconsin. The size of the zone was determined by using previous experiences with fireworks displays in the Captain of the Port Milwaukee zone and local knowledge about wind, waves, and currents in this particular area.

The safety zone will be in effect on July 27th through July 29th, from 9:50 p.m. until 10:30 p.m.(CST) each day. The safety zone will encompass all waters bounded by the following coordinates: from the point of origin at 43°02.209′ N, 087°53.714′ W; southeast to 43°02.117′ N, 087°53.417′ W; south to 43°01.767′ N, 087°53.417′ W; southwest to 43°01.555′ N, 087°53.772′ W; then north along the shoreline back to the point of origin. All coordinates in this section reference 1983 North American Datum (NAD83). The size of this zone was determined using the National Fire Prevention Association guidelines and local knowledge concerning wind, waves, and currents.

All persons and vessels shall comply with the instructions of the Captain of the Port Milwaukee or his designated on scene patrol personnel. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Milwaukee or his designated on scene representative. The Captain of the Port Milwaukee may be contacted via VHF Channel 16.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979).

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities: the owners or operators of vessels intending to transit or anchor in the vicinity of Harbor Island in Milwaukee's outer harbor from 9:50 p.m. (CST) until 10:30 p.m. (CST) on July 27th through July 29th, 2001.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: this rule will be in effect for only forty minutes on three days, late in the day when vessel traffic is minimal. Vessel traffic may enter or transit through the safety zone with the permission of the Captain of the Port Milwaukee or his designated on scene representative. Before the effective period, we will issue maritime advisories widely available to users of the Milwaukee Harbor.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Marine Safety Office Milwaukee (See ADDRESSES. )

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those unfunded mandate costs. This rule will not impose an unfunded mandate.

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.

The Coast Guard considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.lC, this rule is categorically excluded from further environmental documentation.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, 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.

We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM, and, under 5 U.S.C. 553(d)(3), good cause exists for making this rule effective less than 30 days after publication in the Federal Register . The Coast Guard had insufficient advance notice to publish an NPRM followed by a temporary final rule. Publication of a notice of proposed rulemaking and delay of the regulation's effective date would be contrary to the public interest because immediate action is necessary to prevent possible loss of life, injury, or damage to property. The Coast Guard has not received any complaints or negative comments with regard to this event.

This temporary rule is necessary to ensure the safety of spectators and vessels during the setup, loading and launching of a fireworks display in conjunction with the City of Huron July 14, 2001 Fireworks. The fireworks display will occur between 10 a.m. and 11 p.m. on July 14th.

This safety zone will encompass all waters and the adjacent shoreline of Huron River Boat Basin, Huron, Ohio, bounded by an arc of a circle with a 560-foot radius with its center in approximate position 41°23′45″ N, 082°32′55″ W. The Captain of the Port Toledo or his designated on scene representative may terminate this event.

All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on scene patrol personnel. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Toledo or his designated on scene representative. The Captain of the Port or his designated on scene representative may be contacted via VHF Channel 16.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). This finding is based on the historical lack of vessel traffic during this time of year.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which may be small entities: the owners and operators of vessels intending to transit or anchor in a portion of Huron River Boat Basin off Huron, Ohio.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: this rule will be in effect for only a few hours on one day, and vessel traffic can pass safely around the safety zone.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offer to assist small entities in understanding the rule so that they may better evaluate its effects on them and participate in the rulemaking process. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Marine Safety Office Toledo (see ADDRESSES. )

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal government having first provided the funds to pay those costs. This rule will not impose an unfunded mandate.

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.

The Coast Guard considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.lC, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, 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.

We have analyzed this proposed rule under Executive order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a statement of Energy Effects under Executive Order 13211.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM, and under 5 U.S.C. 553(d)(3), good cause exists for making this rule effective less than 30 days after publication in the Federal Register . The permit application was not received with sufficient time to publish an NPRM followed by a temporary final rule that would be effective before the required effective date. Delaying this rule would be contrary to the public interest of ensuring the safety of spectators and vessels during this event and immediate action is necessary to prevent possible loss of life or property. The Coast Guard has not received any complaints or negative comments previously with regard to this event.

A temporary safety zone is necessary to ensure the safety of vessels and spectators from the hazards associated with fireworks displays. Based on recent accidents that have occurred in other Captain of the Port zones, and the explosive hazard of fireworks, the Captain of the Port Milwaukee has determined firework launches in close proximity to watercraft pose significant risks to public safety and property. The likely combination of large numbers of recreational vessels, congested waterways, darkness punctuated by bright flashes of light, alcohol use, and debris falling into the water could easily result in serious injuries or fatalities. Establishing a safety zone to control vessel movement around the location of the launch platforms will help ensure the safety of person and property at these events and help minimize the associated risk.

The safety zone will be in effect on July 13th, from 9:30 p.m. (CST) until 10:30 p.m. (CST). The safety zone will encompass all waters bounded by the arc of a circle with a 800-foot radius with its center in approximate position 44°27′30″ N, 087°29′45″ W, offshore of Kewaunee Festival Grounds, Kewaunee Harbor, Lake Michigan, Wisconsin. The size of this zone was determined using the National Fire Prevention Association guidelines and local knowledge concerning wind, waves, and currents.

All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on scene patrol personnel. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Milwaukee or his designated on scene representative. The Captain of the Port or his designated on scene representative may be contacted via VHF Channel 16.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that order. The Office of Management and Budget has not reviewed this rule under that order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary.

This determination is based on the minimal time that vessels will be restricted from the zone, and the fact that the activated zone is located in an area where the Coast Guard expects insignificant adverse impact to mariners.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

This proposed rule would affect the following entities, some of which might be small entities: the owners or operators of commercial vessels intending to transit a portion of the activated safety zone.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: the zone is only in effect for one hour of one day; vessel traffic can safely pass outside the safety zone during the event; and traffic may be allowed to pass through the safety zone under Coast Guard escort with the permission of the Captain of the Port Milwaukee. Before the effective period, we will issue maritime advisories widely available to users of the Port of Kewaunee by the Ninth Coast Guard District Local Notice to Mariners, Marine information broadcasts, and facsimile broadcasts may also be made.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects and participate in the rulemaking process. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Marine Safety Office Milwaukee (see ADDRESSES. )

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a state, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This rule would not impose an unfunded mandate.

This rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b) (2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

The Coast Guard has analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.

We have considered the environmental impact of this proposed rule and concluded that, under figure 2-1, paragraph 34(g) of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation. A written categorical exclusion determination is available in the docket for inspection or copying where indicated under ADDRESSES.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, 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.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a significant energy action under that order because it is not a significant regulatory action under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

The regulatory history for this rulemaking appears in the preamble of the final rule entitled “Raising the Threshold of Property Damage for Reports of Accidents Involving Recreational Vessels” [66 FR 21671 (May 1, 2001)].

After issuance of the final rule, a State Boating Law Administrator expressed concern about a provision in the rule requiring reports of all collisions involving two or more vessels resulting exclusively in damage to property, regardless of the amount of such damage.

Currently, few States have statutory authority to require reports of multi-vessel accidents that result neither in personal injury nor in any damage to property. Further, States' legislative calendars preclude compliance by the published effective date, July 2, 2001. We note that States' legislation would be unnecessary if the provision for reporting collisions of two or more vessels included a threshold of $500, since all States do now maintain such a threshold. In response to the concern raised about the impacts on States' legislation, the Coast Guard has decided to suspend the provision in 33 CFR 173.55(a)(3), requiring a report whenever “* * * a collision occurs involving two or more vessels, regardless of the amount of damage to property; * * *”, and to provide a 90-day comment period on the provision. To facilitate the editorial handling of this suspension, Coast Guard is designating this provision as paragraph (a)(3)(ii) of § 173.55. The first provision raising the threshold of damage to $2000 is designated as paragraph (a)(3)(i) and remains effective July 2, 2001.

We encourage you to participate in this rulemaking by submitting to the Facility specified in ADDRESSES comments and related material limited to the requirements of the provision in newly designated 33 CFR 173.55(a)(3)(ii). We will consider all comments received during the comment period and may change 33 CFR 173.55(a)(3) in response to the comments.

This document establishes regulations regarding grants to States for the construction or acquisition of State homes for furnishing domiciliary and nursing home care to veterans, or for the expansion, remodeling, or alteration of existing State homes for furnishing domiciliary, nursing home, or adult day health care to veterans. The rule, which is set forth in a new 38 CFR part 59, consists of a comprehensive rewrite of the regulations set forth in 38 CFR 17.210 through 17.222. The substantive differences from the previous regulations are discussed below.

Public Law 102-585 changed from 90 days to 180 days the time limit for States receiving a conditionally-approved grant to fully comply with the requirements for a grant. The rule reflects this statutory provision.

Under authority of Public Law 104-262 (enacted on October 9, 1996), the rule includes provisions for awarding grants to States to expand, remodel, or alter existing buildings for furnishing adult day health care.

The rule also includes provisions to implement statutory provisions established by the Veterans Millennium Health Care and Benefits Act (Public Law 106-117, enacted on November 30, 1999). This Act made the following changes that are reflected in the rule:

• The Act requires VA to prescribe for each State the number of nursing home and domiciliary beds for which grants may be furnished. This is required to be based on the projected demand for nursing home and domiciliary care on November 30, 2009 (10 years after the date of enactment of the Veterans Millennium Health Care and Benefits Act (Pub. L. 106-117)), by veterans who at such time are 65 years of age or older and who reside in that State. In determining the projected demand, VA must take into account travel distances for veterans and their families.

• The Act sets forth new criteria for determining the order of priority for grants for projects, including provisions regarding whether the need for a bed-producing project is great, significant, or limited.

• The Act provides that VA may not accord any priority to projects for the construction or acquisition of a hospital.

• The Act provides that a State may not request a grant for a project for which the total cost of construction is not in excess of $400,000.

• The Act provides that a grant may not include maintenance and repair work.

• The Act requires an application for a grant for construction or acquisition of a nursing home or a domiciliary facility to include the following in the application for a grant:

(1) Documentation that the site of the project is in reasonable proximity to a sufficient concentration and population of veterans that are 65 years of age and older and that there is a reasonable basis to conclude that the facility when complete will be fully occupied,

(2) A financial plan for the first three years of operation of such facility, and

(3) A five-year capital plan for the State home program for that State.

The rule also includes provisions to reflect that, under Public Law 106-419, VA will not recapture amounts for all or portions of a facility that was changed to an outpatient clinic established and operated by VA.

As noted above, the Veterans Millennium Health Care and Benefits Act sets forth new criteria for determining the order of priority for grants for projects. We have also created new subpriorities for each priority category that reflect the statutory priority scheme. In addition, further subpriorities in “priority group 1—subpriority 1” are established to give higher priorities to the most urgently needed projects. Further subpriorities in “priority group 1—subpriority 4” are established to give higher priority to projects that we have determined are most needed for care of veterans. As a last resort for ties in subpriorities, the rule will give projects priority based on the earliest dates of receipt by VA of applications.

For a State's application to be included in priority group 1, a State must have made sufficient funds available for the project for which the grant is requested so that such project may proceed upon approval of the grant without further action required by the State (such as subsequent issuance of bonds) to make such funds available for such purpose. To meet this criteria, the State must provide to VA a letter from an authorized State budget official certifying that the State funds are, or will be, available for the project, so that if VA awards the grant, the project may proceed without further State action to make such funds available. If the certification is based on an Act authorizing the project and making available the State's matching funds for the project, a copy of the Act must be submitted with the certification.

Previously, at the time of prioritizing applications, instead of the whole amount, a State was merely required to provide a copy of an Act making available at least one-half of the State's matching funds for the project. We propose to require the full amount for priority group 1 applications. The change to require the full amount is necessary to help ensure that the State will actually have all of the funds available as needed for the project without having to take further action which could delay the construction of the State home.

As noted above, the Veterans Millennium Health Care and Benefits Act requires VA to prescribe for each State the number of nursing home and domiciliary beds for which grants may be furnished. This is required to be based on the projected demand for nursing home and domiciliary care on November 30, 2009 (10 years after the date of enactment of the Act), by veterans who at such time are 65 years of age or older and who reside in that State. As described below, we established the maximum number for each State in accordance with that criteria.

To determine the maximum number of nursing home beds for each State, we started with the national nursing home utilization by males 65 and older which came from the Medical Expenditure Panel Survey (MEPS) conducted by the Department of Health and Human Services in 1996. The MEPS includes nursing home utilization by age group and by level of dependency in activities of daily living (ADL). Based on the assumptions that the national nursing home use rate for males would be approximately the same for veterans and non-veterans, and that the projected number of female veterans over 65 would be very small, we applied the national rate to the projected male and female veteran population 65 years and older in 2009 in each State. We multiplied the resulting number for each State by 11.5 percent. This percentage represents the projected national State nursing home reliance factor projected for VA for 2009. We also project that the VA national reliance factor for VA nursing homes and community nursing homes will be 11.5 percent for 2009. These percentages are based upon recent historical and projected data in VA's market share in providing nursing home care for veterans.

To determine the maximum number of domiciliary beds for each State projected to 2009, we applied the current age-specific utilization rates in existing State home domiciliaries to the projected veteran population 65 years and older in 2009 by State.

The maximum number of State home beds by State was then derived by adding the projected number of State nursing home beds for 2009 to the projected number of State domiciliary beds for 2009.

The “natural break points” (large gaps between groups of numbers representing maximum beds needed for States) in the list of maximum State home beds by State are utilized to define great, significant and limited need for beds. A State with great need is a State with no State home beds or with a need for 2000 or more beds; a State with significant need is a State with a need for 1000-1999 beds; and a State with limited need is a State with a need for less than 1000 beds.

For purposes of great, significant, and limited need for beds, the maximum number of State home nursing home and domiciliary beds for each State is the number in the chart in § 59.40 for the State, minus the sum of the number of nursing home and domiciliary beds already in operation at State home facilities, and the number of State home nursing home and domiciliary beds not yet in operation but for which a grant has either been requested or awarded. The numbers for making these calculations will be made available to the public on a VA website at http://www.va.gov/About_VA/Orgs/VHA/VHAProg.htm.

As noted above, the Veterans Millennium Health Care and Benefits Act requires that in considering the number of nursing home and domiciliary beds for which grants may be furnished, VA must take into account travel distances for veterans and their families. In this regard, the rule states that a State may request a grant for a project that would increase the total number of State home nursing home and domiciliary beds beyond the maximum number for that State if the State submits to the Chief Consultant, Geriatrics and Extended Care, documentation to establish a need for an exception based on travel distances of at least two hours (by land transportation or any other usual mode of transportation if land transportation is not available) between a veteran population center sufficient for the establishment of a State home and any existing State home. We believe this is a reasonable method for meeting the statutory requirement.

The rule contains construction requirements for facilities that would furnish nursing home care, domiciliary care, and adult day health care (§§ 59.121 through 59.170). The construction requirements for nursing homes are consistent with the construction requirements that were recently established for per diem for nursing home care of veterans in State homes (38 CFR part 51). The proposed construction requirements for domiciliaries are the same as those for nursing homes because the construction needs are the same. The construction requirements for adult day health care are consistent with the proposed construction requirements for per diem for adult day health care of veterans in State homes (65 FR 39835).

The rule incorporates by reference the 2000 edition of the National Fire Protection Association Life Safety Code entitled “NFPA 101, Life Safety Code” and the 1999 edition of the NFPA 99, Standard for Health Care Facilities (1999 edition). The regulations are designed to ensure that State homes meet these national standards for fire and safety.

Pursuant to 5 U.S.C. 553, we have found for this rule that notice and public procedure are impracticable, unnecessary, and contrary to the public interest and that we have good cause to dispense with notice and comment on this rule and to dispense with a 30-day delay of its effective date. The Veterans' Millennium Health Care and Benefits Act provides that the Secretary shall prescribe provisions in this rule to be used for awarding grants for fiscal year 2002. Without this rule becoming effective immediately, States would not have sufficient time to meet the requirements for inclusion on the priority list for obtaining a grant for fiscal year 2002.

The Secretary hereby certifies that the adoption of this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. All of the entities that would be subject to this proposed rule are State government entities under the control of State governments. Of the 100 State homes, all are operated by State governments except for 17 that are operated by entities under contract with State governments. These contractors are not small entities. Therefore, pursuant to 5 U.S.C. 605(b), this proposed rule is exempt from the initial and final regulatory flexibility analysis requirement of sections 603 and 604.

The Office of Management and Budget has reviewed this interim final rule under Executive Order 12866.

The Unfunded Mandates Reform Act requires (in section 202) that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector of $100 million or more in any given year. This rule would have no consequential effect on State, local, or tribal governments.

This rule is exempt from the collections of information requirements under the Paperwork Reduction Act (44 U.S.C. 3501-3520). The rule only applies to States. Further, in 2000, VA received applications for grants from only six States and we expect that each year fewer than 10 States will submit applications. If VA expects to receive 10 or more applications in any year, we will seek approval under the Paperwork Reduction Act for this collection of information.

Please follow these instructions to access the rule: From the World Wide Web (WWW), type http://www.epa.gov/epaoswer/hazwaste/ldr.

The official record for this action will be kept in paper form. Accordingly, EPA has transferred any comments received electronically into paper form and placed them in the official record which also includes comments submitted directly in writing. The official record is the paper record maintained at the RIC listed in the ADDRESSES section at the beginning of this document.

Under Section 3004(m) of the Resource Conservation and Recovery Act (RCRA) as amended by the Hazardous and Solid Waste Amendments of 1984, EPA is required to set “levels or methods of treatment, if any, which substantially diminish the toxicity of the waste or substantially reduce the likelihood of migration of hazardous constituents from the waste so that short-term and long-term threats to human health and the environment are minimized.” We have interpreted this language to authorize treatment standards based on the performance of best demonstrated available technology (BDAT). This interpretation was sustained by the court in Hazardous Waste Treatment Council vs. EPA, 886 F. 2d 355 (D.C.Cir.1989).

We recognize that there may be wastes that cannot be treated to levels specified in the regulation (see 40 CFR 268.40) (51 FR 40576, November 7, 1986). For such wastes, a treatment variance exists (40 CFR 268.44) that, if granted, becomes the treatment standard for the waste at issue.

Treatment variances may be generic or site-specific. A generic variance can result in the establishment of a new treatability group and a corresponding treatment standard that applies to all wastes that meet the criteria of the new waste treatability group (55 FR 22526, June 1, 1990). A site-specific variance applies only to a specific waste from a specific facility. Under 40 CFR 268.44(h), a generator or treatment facility may apply to the Administrator, or EPA's delegated representative, for a site-specific variance in cases where a waste that is generated under conditions specific to only one site and cannot or should not be treated to the specified level(s). The applicant for a site-specific variance must demonstrate that because the physical or chemical properties of the waste differ significantly from the waste analyzed in development of the treatment standard, the waste cannot be treated by BDAT to the specified levels or by the specified method(s). Although there are other grounds for obtaining treatment variances, we will not discuss those in this notice because this is the only provision relevant to the present petition.

Dupont Environmental Treatment—Chambers Works submitted their request for a treatment variance in February 2000. All information and data used in the development of this final rule can be found in the RCRA docket supporting this rule.

On December 4, 2000 (65 FR 75651), we published a proposed rule detailing our intent to grant a site-specific variance from the K088 treatment standard for arsenic in nonwastewaters to Dupont Environmental Treatment— Chambers Works (herein referred to as “DET”) for their dewatered wastewater treatment sludge. 1 In the proposal, we conclude that an alternative treatment standard of 5.0 mg/L TCLP for arsenic is warranted for the following reasons. First, the sludge generated at DET's WWTP is not the same type of waste that was used to develop the 26.1 mg/kg treatment standard for arsenic in K088 nonwastewaters, nor does it present the same situation regarding the use of a total arsenic standard to lock-in treatment process parameters. Second, the sludge will be disposed of in a Subtitle C hazardous waste landfill with pH conditions in the range of 6.5 to 8.5 and not the alkaline conditions, i.e., pH conditions of 12 and above, that resulted in mobilization of arsenic at Reynold's K088 landfill. Thus, the conditions that prompted the change in the K088 treatment standard are absent for this site. Third, the TCLP remains an adequate measure of treatment efficiency for DET's WWTP sludge due to the non-alkaline sludge matrix and the expected disposal conditions. Therefore, we believe that a TCLP standard of 5.0 mg/L is a reasonable measure of demonstrating that threats posed by the waste's disposal have been minimized. Fourth, the alternative standard of 5.0 mg/L TCLP is currently the standard applicable to arsenic in all other hazardous wastes, except K088 nonwastewaters. Fifth, data submitted to the Agency shows that DET's dewatered WWTP sludge consistently maintains both a neutral pH and TCLP levels of arsenic far less than 5.0 mg/L. Finally, arsenic concentrations in the WWTP sludge cannot be treated to a lower treatment standard based on a totals analysis, i.e., arsenic is an element and as such must be immobilized, it cannot be destroyed.

We received two comments on the proposed rule. Both commenters, the petitioner, DET, and Alcoa Incorporated/Reynolds Metals Company (herein referred to as “Alcoa”), support all the conclusions articulated in the proposal and recommend granting the petition. No adverse comments were made. Alcoa did note, however, that the stipulation, “* * * the waste must be land disposed in their (DET's) on-site subtitle C landfill * * *” (65 FR at 75654) was not specifically reflected in the regulatory language. As such, we are today granting DET's petition for a site-specific treatment variance for their WWTP sludge and will amend 40 CFR part 268 to state that wastewater treatment sludge generated by Dupont Environmental Treatment—Chambers Works Wastewater Treatment Plant in Deepwater, New Jersey is subject to an arsenic treatment standard of 5.0 mg/L TCLP for all RCRA wastes. Furthermore, taking note of Alcoa's concern, we stipulate, and make clear in the regulatory language, that the waste must be land disposed in DET's on-site Subtitle C landfill assuming the waste meets all applicable federal, state and local requirements.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Agency must determine whether a regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

Because this final rule does not create any new regulatory requirements, it is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review.

The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

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

After considering the economic impacts of today's rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This final rule will not impose any requirements on small entities. This treatment variance does not create any new regulatory requirements. Rather, it establishes an alternative treatment standard for a regulated constituent. This action, therefore, does not require a regulatory flexibility analysis.

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. If a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives. Under section 205, EPA must adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule, unless the Administrator publishes with the final rule an explanation why that alternative was not adopted. The provisions of section 205 do not apply when they are inconsistent with applicable law.

EPA has determined that this rule does not include a Federal mandate that may result in estimated costs of $100 million or more in the aggregate to either State, local, or tribal governments or the private sector in one year. The rule would not impose any federal intergovernmental mandate because it imposes no enforceable duty upon State, tribal or local governments. States, tribes, and local governments would have no compliance costs under this final rule. EPA has also determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. In addition, as discussed above, the private sector is not expected to incur costs exceeding $100 million. EPA has fulfilled the requirement for analysis under the Unfunded Mandates Reform Act. Thus, today's rule is not subject to the requirements of sections 202, 204 and 205 of UMRA.

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 UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

EPA has determined that this rule will not significantly or uniquely affect small governments. This final rule will not impose any requirements on small entities. This treatment variance does not create any new regulatory requirements. Rather, it establish an alternative treatment standard for a regulated constituent at the specific facility. Today's rule is not, therefore, subject to the requirements of section 203 of UMRA.

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.

Today's rule is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The subject wastes will comply with all other treatment standards and be disposed of in a RCRA Subtitle C landfill. Therefore, we have identified no risks that may disproportionately affect children.

EPA is committed to addressing environmental justice concerns and is assuming a leadership role in environmental justice initiatives to enhance environmental quality for all residents of the United States. The Agency's goals are to ensure that no segment of the population, regardless of race, color, national origin, or income bears disproportionately high and adverse human health and environmental impacts as a result of EPA's policies, programs, and activities, and that all people live in clean and sustainable communities. In response to Executive Order 12898 and to concerns voiced by many groups outside the Agency, EPA's Office of Solid Waste and Emergency Response formed an Environmental Justice Task Force to analyze the array of environmental justice issues specific to waste programs and to develop an overall strategy to identify and address these issues (OSWER Directive No. 9200.3-17).

Today's final rule applies to wastes that will be treated and disposed of in a RCRA Subtitle C hazardous waste landfill, ensuring a high degree of protection to human health and the environment. Therefore, the Agency does not believe that today's action will result in any disproportionately negative impacts on minority or low-income communities relative to affluent or non-minority communities.

This rule only changes the treatment standards applicable to a subcategory of K088 waste. It does not change in any way the paperwork requirements already applicable to these waste. Therefore, this rule is not affected by the requirements of the Paperwork Reduction Act.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Pub. L. No. 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This action does not involve technical standards based on new methodologies. Therefore, EPA did not consider the use of any voluntary consensus standards.

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 final 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. This treatment variance does not create any new regulatory requirements. Rather, it establishes an alternative treatment standard for a regulated constituent at the specific facility. Thus, Executive Order 13175 does not apply to this rule.

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 implication.” “Policies that have federalism implication” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of governments.”

This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This treatment variance does not create any new regulatory requirements. Rather, it establishes an alternative treatment standard for a regulated constituent at the specific facility. Thus, Executive Order 13132 does not apply to this rule.

The Congressional Review Act, 5 U.S.C. section 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804 exempts from section 801 the following types of rules (1) rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability.

The modified BFEs are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified base flood elevation determinations are available for inspection is provided.

Any request for reconsideration must be based on knowledge of changed conditions, or upon new scientific or technical data.

The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified elevations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities.

The changes in BFEs are in accordance with 44 CFR 65.4.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Acting Administrator, Federal Insurance Administration and Mitigation certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified BFEs are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

Regulatory Classification. This interim rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of section 2(b)(2) of Executive Order 12778.

FEMA makes final determinations listed below of BFEs and modified BFEs for each community listed. The proposed BFEs and proposed modified BFEs were published in newspapers of local circulation and an opportunity for the community or individuals to appeal the proposed determinations to or through the community was provided for a period of ninety (90) days. The proposed BFEs and proposed modified BFEs were also published in the Federal Register .

This final rule is issued in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR Part 67.

FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR Part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community.

The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Acting Administrator, Federal Insurance Administration and Mitigation certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because final or modified BFEs are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and are required to establish and maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This proposed rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

Congress created the NFIP in 1968 to provide federally supported flood insurance coverage, which generally had not been available through private insurance companies. The program is based on an agreement between the Federal Government and each flood-prone community that chooses to participate in the program. FEMA makes flood insurance available to property owners within a community provided that the community adopts and enforces floodplain management regulations that meet or exceed the minimum requirements of the NFIP set forth in Title 44, Chapter I, Part 60 of the NFIP Floodplain Management Regulations (44 CFR Part 60).

The Flood Disaster Protection Act of 1973, as amended by the National Flood Insurance Reform Act of 1994, mandates the purchase of flood insurance on structures located in identified SFHAs as a condition of Federal or federally-related financial assistance for acquisition or construction of structures in SFHAs of any community. The Acts prohibit Federal agency lenders, such as the Small Business Administration, United States Department of Agriculture's Rural Housing Service, and Government-Sponsored Enterprises for Housing (Freddie Mac and Fannie Mae) from making, increasing, guaranteeing, or purchasing a loan secured by improved real estate or mobile home(s) in an SFHA, unless flood insurance has been purchased and maintained on the property during the term of the loan. The Acts also prohibit federally-regulated lenders from making, increasing, extending, or renewing any loan secured by improved real estate located in the SFHA in a participating community unless the secured property and any personal property securing the loan is covered by flood insurance. The prohibition of financial assistance also applies to non-participating communities.

Section 1360 of the National Flood Insurance Act of 1968 (42 U.S.C. 4101) requires the Director of FEMA to identify and map floodplains and to identify flood risk zones, and also makes provision for revising and updating floodplains and flood-risk zones and requiring public notification of flood map changes. The requirements for amending the FIRMs are in 44 CFR part 70, Procedure for Map Correction.

We amend or revise NFIP flood maps for a number of reasons, such as the availability of improved techniques for assessing the flood risk, changes in the physical condition of the floodplain or watershed, or as additional data become available to improve the identification of flood hazards. The criteria for determining whether to remove unimproved land or land with structures from the SFHA because ground elevations of the land or structures are above the BFE are in sections (§§ ) 70.3 and 70.4. If the criteria are met, we will issue a LOMA.

When requesting a LOMA, property owners must submit adequate supporting data according to the criteria established in §§ 70.3 and 70.4, such as a legal description of the property, location of the insurable structure on the property, and information regarding the lowest adjacent grade (LAG) elevation. However, if the structure in question, when plotted on the NFIP map, does not touch the mapped SFHA, we do not require the LAG elevation as part of the data that support the request.

Under § 70.4, after we review the scientific or technical information that the LOMA applicant submitted, we notify the applicant that we have compared the ground elevations of the entire legally defined parcel of land or the elevation of the lowest adjacent grade to a structure with the elevation of the base flood and that:

(a) The property is within a designated flood-risk zone and we state the basis for our determination; or

(b) The property should not be included within a designated flood-risk zone and we will amend the FHBM or the FIRM; or

(c) We need an additional 60 days to make a determination.

There is an alternative outcome that we sometimes encounter during the LOMA review process that part 70 does not describe. After plotting the property location on the NFIP map, a property or structure may fall outside the delineated SFHA. When this happens, the LOMA states that the property or structure is “out as shown” and there is no need to take action to correct the map because the map already indicates that the property or structure falls outside the SFHA.

There has been considerable confusion over the determination made in some LOMAs that state a property or structure is “out as shown” on the effective NFIP map. Specifically, when a third party determination company has made a determination for a lender that a structure is in the SFHA and the borrower requests a LOMA from FEMA that results in a determination that the structure is already mapped outside the SFHA, lenders are requesting that the third party change its finding to agree with FEMA's. Without comparing the data used by the determination company to the data used by FEMA comparing the property and structure, a conclusion is unsure. If this conflict arises during the loan origination process, there is an established process for resolving disputes under part 65.17: “Review of Determinations.” We are amending this rule to clarify the status of LOMAs that make a determination of “out as shown.”

By this rule, we are adding an additional possible outcome to those described in § 70.4: The property is not within a designated SFHA as shown on the NFIP map and no modification of the Flood Hazard Boundary Map or FIRM is necessary.

Under the National Flood Insurance Program FEMA must identify floodprone areas throughout the United States and revise and update flood maps when sufficient technical data justify a request for map amendment or map revision (42 U.S.C. 4101). If an insurable property is located within an identified SFHA, the property owner must obtain flood insurance under specified conditions (42 U.S.C. 4012a). It follows that if an insurable property is located outside an SFHA the mandatory flood insurance purchase requirements of the Flood Disaster Protection Act of 1973 do not apply (although the owner may purchase flood insurance voluntarily).

This rule is an “interpretative” rule under the Administrative Procedure Act (5 U.S.C. 553(b)(A)). The rule interprets the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973 to clarify that when we find sufficient technical data and determine that a property or structure is “out as shown” on an existing FHBM or FIRM, that is, when the property is located outside an SFHA as shown on the map, we will issue a Letter of Map Amendment but will not modify the FHBM or FIRM.

Accordingly, we have determined that this rule is not subject to the requirements of 5 U.S.C. 553(b), and we are making the rule effective upon publication under the authority of 5 U.S.C. 553(d)(2). The Office of Management and Budget, Office of Information and Regulatory Affairs, has reviewed this rule.

NEPA imposes requirements for considering the environmental impacts of agency decisions. It requires that an agency prepare an Environmental Impact Statement (EIS) for “major federal actions significantly affecting the quality of the human environment.” If an action may or may not have a significant impact, the agency must prepare an environmental assessment (EA). If, as a result of this study, the agency makes a Finding of No Significant Impact (FONSI), no further action is necessary. If it will have a significant effect, then the agency uses the EA to develop an EIS.

Agencies can categorically identify actions (for example, repair of a building damaged by a disaster) that do not normally have a significant impact on the environment. The purpose of this interpretive rule is to clarify and state expressly in our rules that when we determine that a property or structure is “out as shown” on an existing FHBM or FIRM, we will issue a Letter of Map Amendment but will not modify the FHBM or FIRM.

Accordingly, we have determined that this rule is excluded from the preparation of an environmental assessment or environmental impact statement under 44 CFR 10.8(d)(2)(ii), where the rule is related to actions that qualify for categorical exclusion under 44 CFR 10.8(d)(2)(iv).

This rule requires the collection of information. Under the Paperwork Reduction Act (Act) we must consider the impact of paperwork and other information collection burdens imposed on the public. The Act mandates specific reductions in the amount of paperwork requirements imposed by agencies. It requires specific approval by the Office of Management and Budget (OMB) of any new requirements for collection of information imposed on ten or more persons by an agency; without such approval, the agency lacks the authority to enforce any such requirement. The Act also requires us to inform respondents that a response is not required unless the collection of information displays a valid OMB control number.

OMB has previously approved the following information collection requirements covered by this final rule under the provisions of the Paperwork Reduction Act, as amended:

We have prepared and reviewed this rule under the provisions of E.O. 12866, Regulatory Planning and Review. Under Executive Order 12866, 58 FR 51735, October 4, 1993, a significant regulatory action is subject to OMB review and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

This rule is an “interpretative” rule under the Administrative Procedure Act (5 U.S.C. 553(b)(A)). The rule interprets the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973 to clarify that when we find sufficient technical data and determine that a property or structure is “out as shown” on an existing FHBM or FIRM, that is, when the property is located outside an SFHA as shown on the map, we will issue a Letter of Map Amendment and that does not modify the FHBM or FIRM. We know of no conditions that would qualify the rule as a “significant regulatory action” within the definition of section 3(f) of the Executive Order.

Accordingly, this rule is not a major rule as defined in 5 U.S.C. 804(2). To the extent possible this rule adheres to the principles of regulation as set forth in Executive Order 12866. The Office of Management and Budget (OMB) has not reviewed this rule under Executive Order 12866.

Executive Order 13132, Federalism, dated August 4, 1999, sets forth principles and criteria that agencies must adhere to in formulating and implementing policies that have federalism implications, that is, regulations that have substantial direct effects on the States, or on the distribution of power and responsibilities among the various levels of government. Federal agencies must closely examine the statutory authority supporting any action that would limit the policymaking discretion of the States, and to the extent practicable, must consult with State and local officials before implementing any such action.

We have reviewed this final rule under Executive Order 13132 and have concluded that the rule does not have federalism implications as defined by the Executive Order. The rule interprets the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973 to clarify that when we find sufficient technical data and determine that a property or structure is “out as shown” on an existing FHBM or FIRM, that is, when the property is located outside an SFHA as shown on the map, we will issue a Letter of Map Amendment and that does not modify the FHBM or FIRM.

We have determined that the rule does not significantly affect the rights, roles, and responsibilities of States, and involves no preemption of State law nor does it limit State policymaking discretion. Accordingly, the provisions of Executive Order 13132, Federalism, do not apply to this rule. The Office of Management and Budget has reviewed this rule under the provisions of Executive Order 13132.

This rule involves no policies that have federalism implications under Executive Order 13132, Federalism, dated .

We have sent this final rule to the Congress and to the General Accounting Office under the Congressional Review of Agency Rulemaking Act, Pub. L. 104-121. The rule is not a “major rule” within the meaning of that Act. It is an interpretive rule in support of normal day-to-day mapping activities related to Letters of Map Amendment under the National Flood Insurance Program.

The rule will not result in a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. It will not have “significant adverse effects” on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises. This final rule is subject to the information collection requirements of the Paperwork Reduction Act and OMB has assigned Control Nos. 3067-0147, 3067-0148, and 3067-0257. The rule is not an unfunded Federal mandate within the meaning of the Unfunded Mandates Reform Act of 1995, Pub. L. 104-4, and any enforceable duties that we impose are a condition of Federal assistance or a duty arising from participation in a voluntary Federal program.

We consider that it is in the public interest to remove substantially damaged structures and related slabs, driveways, fencing, garages, sheds, and similar appurtenances from properties that are part of a FEMA-funded hazard mitigation buyout and relocation project. On May 16, 2000, we published a proposed rule on debris removal in the Federal Register , 65 FR 31129, and invited comments for 60 days ending on July 15, 2000. We received comments from three sources representing a federal agency, a State government, and a national association.

The proposed rule stated that we would consider in the public interest the removal of substantially damaged structures that a community acquired through a FEMA-funded hazard mitigation project. The removal of such structures would help to mitigate the risk to life and property by converting the property to uses that are compatible with open space, recreational and wetlands management practices. We believe that Federal assistance used in this way supports the effort to break the cycle of repetitive damage and repair; such removal is less costly to taxpayers than paying for repetitive damage and repair. Mitigation through buyout and relocation also substantially reduces the risk of future infrastructure damage and personal hardship, loss and suffering.

Comment. One commenter asked whether it is in the public interest to remove substantially damaged structures and related appurtenances during a partial buyout. In these cases, the commenter said, a FEMA-funded mitigation program may acquire one property, but not an adjacent property.

Response. We believe that debris removal from the acquired property is in the public interest because that property will not be built upon in the future. This type of removal contributes to the goal of reducing long-term vulnerability. In the case of an adjacent property, if that property is not substantially damaged, it could be removed under section 404 of the Stafford Act, but it could not be removed under section 407 since it would not be debris or wreckage.

Comment. Another commenter stated that debris and wreckage removal was just one element of demolition and suggested that we also fund the razing of these structures.

Response. We intend to remove only those structures that may be classed as debris and wreckage. Razing the structure in such cases should not be necessary. However, if a structure and its appurtenances meet the criteria in this rule, that is, that the property is substantially damaged and acquired through a FEMA-funded hazard mitigation program, we will fund its removal and will include razing and disposal as applicable.

Comment. A related comment asked that we fund the removal of all damaged structures acquired through a FEMA-funded mitigation program, not just those that are substantially damaged. Section 407 of the Stafford Act allows for the removal of debris and wreckage.

Response. We do not consider structures to be debris and wreckage if they are not substantially damaged. If we were to fund their removal, we would have to do so under the authority of section 404 of the Stafford Act. In order to lessen the administrative burden of funding on a structure-by-structure basis in areas where some structures are substantially damaged and others are not, we will fund debris and wreckage removal on a prorated basis. For example, if 60 percent of structures are substantially damaged, we will reimburse 60 percent of the costs for removing all structures acquired through a FEMA-funded mitigation program.

Comment. A final comment raised the issue of timelines for completion of debris removal. The commenter thought that assisting in the buyout process would prevent the Public Assistance Program from reaching disaster closeout objectives. The commenter suggested that we limit funding to 12 months after the declaration.

Response. We understand the point of the commenter and agree that the use of the authority must be time-limited. Because we find a one-year deadline to be impractical, we have established a two-year deadline, which we do find reasonable. Therefore, we will allow two years from the declaration date to obligate funds and complete the removal of substantially damaged structures.

This rule is excluded from the preparation of an environmental assessment or environmental impact statement under 44 CFR 10.8(d)(2)(ii), where the rule is related to actions that qualify for categorical exclusion under 44 CFR 10.8(d)(2)(vii).

We have prepared and reviewed this final rule under the provisions of E.O. 12866, Regulatory Planning and Review. Under Executive Order 12866, 58 FR 51735, October 4, 1993, a significant regulatory action is subject to OMB review and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

This final rule adds a category of property eligible to receive public assistance following a declared disaster, and will benefit those small entities that qualify for this assistance. We know of no conditions that would qualify the rule as a “significant regulatory action” within the definition of section 3(f) of the Executive Order. To the extent possible this rule adheres to the principles of regulation in Executive Order 12866. The Office of Management and Budget has not reviewed this rule under the provisions of Executive Order 12866.

This rule does not require a collection of information and therefore is not subject to the provisions of the Paperwork Reduction Act of 1995.

Under the Regulatory Flexibility Act agencies must consider the impact of their rulemakings on “small entities” (small businesses, small organizations and local governments). When an agency is required by 5 U.S.C. 553 to publish a notice of proposed rulemaking, a regulatory flexibility analysis is required for both the proposed rule and the final rule if the rulemaking could “have a significant economic impact on a substantial number of small entities.” The Act also provides that if a regulatory flexibility analysis is not required, the agency must certify in the rulemaking document that the rulemaking will not “have a significant economic impact on a substantial number of small entities.”

For the reasons that follow I certify that a regulatory flexibility analysis is not required for this rule because it would not have a significant economic impact on a substantial number of small entities. This rule adds a new condition under which we may determine debris removal is in the public interest following a declared disaster. We expect the rule will benefit those small entities that qualify for this assistance and will enhance the ability of local officials to make sound floodplain management decisions more readily than under the current rule.

Executive Order 13132, Federalism, dated August 4, 1999, sets forth principles and criteria that agencies must adhere to in formulating and implementing policies that have federalism implications, that is, regulations that have substantial direct effects on the States, or on the distribution of power and responsibilities among the various levels of government. Federal agencies must closely examine the statutory authority supporting any action that would limit the policymaking discretion of the States, and to the extent practicable, must consult with State and local officials before implementing any such action.

We have reviewed this rule under Executive Order 13132 and have concluded that the rule does not have federalism implications as defined by the Executive Order. As noted under Regulatory Planning and Review, this rule adds a new condition under which we may determine debris removal is in the public interest following a declared disaster. We know of no substantial direct effects on the States, or on the distribution of power and responsibilities among the various levels of government that would result from this rule.

The Office of Management and Budget has reviewed this rule under the provisions of Executive Order 13132.

We have sent this rule to the Congress and to the General Accounting Office under the Congressional Review of Agency Rulemaking Act, Pub. L. 104-121. The rule is not a “major rule” within the meaning of that Act. By adding a new condition under which we may determine debris removal is in the public interest following a declared disaster it will not result in an annual effect on the economy of $100,000,000 or more. We do not expect that it will result in a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. Nor do we expect that it will have “significant adverse effects” on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises.

This is a synopsis of the Commission's Report and Order in MM Docket No. 00-12, adopted June 6, 2001, and released June 8, 2001. The full text of this decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street, SW, Washington, D.C. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Service, Inc., (202) 857-3800, 1231 20th Street, NW, Washington, DC 20036.

This is a synopsis of the Commission's Report and Order, MM Docket No. 00-160, adopted June 6, 2001, released June 15, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW, Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractors, International Transcription Service, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.

This is a summary of the Commission's Report and Order, MM Docket No. 01-6, adopted May 30, 2001, and released June 8, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center, 445 12th Street, SW., 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.

Congress made significant changes to the Endangered Species Act of 1973, as amended (Act), with the addition of section 10(j), which provides for the designation of specific reintroduced populations of listed species as “experimental populations.” Previously, we had authority to reintroduce populations into unoccupied portions of a listed species' historical range when doing so would foster the recovery of the species. However, local citizens often opposed these reintroductions because they were concerned about the placement of restrictions and prohibitions on Federal and private activities. Under section 10(j), the Secretary of the Interior can designate reintroduced populations established outside the species' current range, but within its historical range, as “experimental.”

Under the Act, species listed as endangered or threatened are afforded protection primarily through the prohibitions of section 9 and the requirements of section 7. Section 9 of the Act prohibits the take of a listed species. “Take” is defined by the Act as harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct. Section 7 of the Act outlines the procedures for Federal interagency cooperation to conserve federally listed species and protect designated critical habitats. It mandates all Federal agencies to determine how to use their existing authorities to further the purposes of the Act to aid in recovering listed species. It also states that Federal agencies will, in consultation with the Service, insure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. Section 7 of the Act does not affect activities undertaken on private lands unless they are authorized, funded, or carried out by a Federal agency.

Section 10(j) is designed to increase our flexibility in managing an experimental population by allowing us to treat the population as threatened, regardless of the species' designation elsewhere in its range. Threatened designation gives us more discretion in developing and implementing management programs and special regulations for a population, such as this rule, and allows us to develop any regulations we consider necessary to provide for the conservation of a threatened species. In situations where we have experimental populations, certain section 9 prohibitions that apply to threatened species may no longer apply, and the special rules contain the prohibitions and exceptions necessary and appropriate to conserve that species.

Based on the best available information, we must determine whether experimental populations are “essential,” or “nonessential,” to the continued existence of the species. An experimental population that is essential to the survival of the species is treated as a threatened species. An experimental population that is nonessential to the survival of the species is also treated as a threatened species. However, for section 7 interagency cooperation purposes, if the NEP is located outside of a National Wildlife Refuge or National Park, it is treated as a species proposed for listing. Regulations for NEPs may be developed to be more compatible with routine human activities in the reintroduction area.

For the purposes of section 7 of the Act, in situations where there is an NEP located within a National Wildlife Refuge or National Park, the individuals of the NEP are treated as threatened and section 7(a)(1) and the consultation requirements of section 7(a)(2) of the Act would apply. Section 7(a)(1) requires all Federal agencies to use their authorities to conserve listed species. Section 7(a)(2) requires that Federal agencies consult with the Service before authorizing, funding, or carrying out any activity that would likely jeopardize the continued existence of a listed species or adversely modify its critical habitat. When NEPs are located outside a National Wildlife Refuge or National Park, only two provisions of section 7 would apply: Section 7(a)(1) and section 7(a)(4). Federal agencies are not required to consult with us under section 7(a)(2). Section 7(a)(4) requires Federal agencies to informally confer with the Service on actions that are likely to jeopardize the continued existence of a species proposed for listing. However, since we determined that the NEP is not essential to the continued existence of the species, it is very unlikely that we would ever determine jeopardy for a project impacting a species within an NEP.

Individuals used to establish an experimental population may come from a donor population, provided their removal is not likely to jeopardize the continued existence of the species, and appropriate permits are issued in accordance with our regulations (50 CFR 17.22) prior to their removal.

The whooping crane ( Grus americana ) was listed as an endangered species on March 11, 1967 (32 FR 4001). The whooping crane is classified in the family Gruidae, Order Gruiformes. It is the tallest bird in North America; males approach 1.5 meters (m) (5 feet (ft)) tall. In captivity, adult males average 7.3 kilograms (kg) (16 pounds (lb)) and females 6.4 kg (14 lbs). Adult plumage is snowy white except for black primary feathers, black or grayish alulae, sparse black bristly feathers on the carmine (red) crown and malar region (side of the head), and a dark gray-black wedge-shaped patch on the nape. The bill is dark olive-gray, which becomes lighter during the breeding season. The iris of the eye is yellow; legs and feet are gray-black.

Adults are potentially long-lived. Current estimates suggest a maximum longevity in the wild of 22 to 24 years (Binkley and Miller 1980). Captive individuals are known to have survived 27 to 40 years (McNulty 1966, Moody 1931). Mating is characterized by monogamous lifelong pair bonds. Individuals re-mate following death of their mate. Fertile eggs are occasionally produced at age 3 years but more typically at age 4. Experienced pairs may not breed every year, especially when habitat conditions are poor. Whooping cranes ordinarily lay two eggs. They will renest if their first clutch is destroyed or lost before mid-incubation (Erickson and Derrickson 1981, Kuyt 1981). Although two eggs are laid, whooping crane pairs infrequently fledge two chicks. Only about one of every four hatched chicks survives to reach the wintering grounds (U.S. Fish and Wildlife Service 1986)

The whooping crane first appeared in fossil records from the early Pleistocene (Allen 1952) and probably was most abundant during that 2-million-year epoch. They once occurred from the Arctic Sea to the high plateau of central Mexico, and from Utah east to New Jersey, South Carolina, and Florida (Allen 1952, Nesbitt 1982). In the 19th century, the principal breeding range extended from central Illinois northwest through northern Iowa, western Minnesota, northeastern North Dakota, southern Manitoba, and Saskatchewan to the vicinity of Edmonton, Alberta. A nonmigratory breeding population existed in southwestern Louisiana until the early 1900's (Allen 1952, Gomez 1992).

Through the use of two independent techniques of population estimation, Banks (1978) derived estimates of 500 to 700 whooping cranes in 1870. By 1941, the migratory population contained only 16 individuals. The whooping crane population decline in the 19th and early 20th century was a consequence of hunting and specimen collection, human disturbance, and conversion of the primary nesting habitat to hay, pastureland, and grain production (Allen 1952, Erickson and Derrickson 1981).

Allen (1952) described several historical migration routes. One of the most important led from the principal nesting grounds in Iowa, Illinois, Minnesota, North Dakota, and Manitoba to coastal Louisiana. Another went from Texas and the Rio Grande Delta region of Mexico northward to nesting grounds in North Dakota and the Canadian Provinces. A route through west Texas into Mexico probably followed the route still used by sandhill cranes ( Grus canadensis ). These whooping cranes would have wintered in the interior tablelands of western Texas and the high plateau of central Mexico.

Another migration route crossed the Appalachians to the Atlantic Coast. These birds apparently nested in the Hudson Bay area of Canada. Coastal areas of New Jersey, South Carolina, and river deltas farther south were the wintering grounds. The latest specimen records or sighting reports for some eastern locations are Alabama, 1899; Arkansas, 1889; Florida, 1927 or 1928; Georgia, 1885; Illinois, 1891; Indiana, 1881; Kentucky, 1886; Manitoba, 1948; Michigan, 1882; Minnesota, 1917; Mississippi, 1902; Missouri, 1884; New Jersey, 1857; Ohio, 1902; Ontario, 1895; South Carolina, 1850; and Wisconsin, 1878 (Allen 1952, Burleigh 1944, Hallman 1965, Sprunt and Chamberlain 1949).

Atlantic coast locations used by whooping cranes included the Cape May area and Beesley's Point at Great Egg Bay in New Jersey; the Waccamaw River in South Carolina; the deltas of the Savannah and Altamaha Rivers, and St. Simon's Island in Georgia; and the St. Augustine area of Florida. Gulf coast locations include Mobile Bay, Alabama; Bay St. Louis in Mississippi; and numerous records from southwestern Louisiana, where the last bird was captured in 1949. Coastal Louisiana contained both a nonmigratory flock and wintering migrants (Allen 1952, Gomez 1992).

There is evidence to suggest that whooping cranes occurred in Florida, perhaps well into the 20th century (Nesbitt 1982). Nesbitt described various sighting reports including one by O. E. Baynard, a respected field naturalist, who stated that the last flock of whooping cranes (14 birds) he saw in Florida was in 1911 near Micanopy, southern Alachua County. Two whooping cranes were reported east of the Kissimmee River on January 19, 1936, and a whooping crane was shot (and photographed) north of St. Augustine, St. Johns County, in 1927 or 1928 (Nesbitt 1982).

Records from more interior areas of the Southeast include the Montgomery, Alabama, area; Crocketts Bluff on the White River, and near Corning in Arkansas; in Missouri at sites in Jackson County near Kansas City, in Lawrence County near Corning, southwest of Springfield in Audrain County, and near St Louis; and in Kentucky near Louisville and Hickman. It is unknown whether these records represent wintering locations, remnants of a nonmigratory population, or wandering birds.

The historic breeding range of the whooping crane in the United States included Illinois, Iowa, North Dakota, and Minnesota, with the largest number of confirmed nesting records in Iowa (Allen 1952). There are at least five reliable reports from Wisconsin; although there are no confirmed records of nesting in Wisconsin, there is a nesting record from Dubuque County, Iowa (Allen 1952), which is adjacent to Grant County, Wisconsin.

Whooping cranes currently exist in three wild populations and at six captive locations. The only self-sustaining natural wild population nests in the Northwest Territories and adjacent areas of Alberta, Canada, primarily within the boundaries of Wood Buffalo National Park. These birds winter along the central Texas Gulf of Mexico coast at Aransas National Wildlife Refuge and adjacent areas. Fifty pairs from this population nested in 2000, and 176 adult whooping cranes were reported in spring 2001. The flock recovered from a population low of 15 or 16 birds in 1941. This population is hereafter referred to as the Aransas/Wood Buffalo National Park population (AWP).

The second largest wild population is found in the Kissimmee Prairie area of central Florida. We designated this population as an experimental nonessential population in January 1993 (58 FR 5647-5658). Since 1993, 228 isolation-reared whooping cranes have been released in this area, in an ongoing reintroduction effort to establish a nonmigratory flock. As of February 2001, there are 86 surviving individuals in the project area. Birds in this population have reached breeding age within the past several years. During the 2000 nesting season, a total of 15 pairs defended territories, 3 pairs laid eggs, and 2 of these pairs failed prior to hatching. The remaining pair hatched both eggs, but no chicks survived to fledging.

The third wild flock consists of two remaining individuals from an effort to establish a migratory population in the Rocky Mountains through cross-fostering with greater sandhill cranes ( Grus canadensis tabida ) (Drewien and Bizeau 1977, Bizeau et al. 1987), and an experiment in 1997 when four whooping cranes were led behind an ultralight aircraft between Idaho and New Mexico (Clegg et al. 1997). The cross-fostering project began in 1975 and has failed to produce any chicks or mated pairs (Ellis et al. 1992a). The term, “cross-fostering” refers to the foster rearing of the whooping crane chicks by another species, the sandhill crane. The cross-fostered whooping cranes have never bred with other whooping cranes. The females in that group may be improperly sexually imprinted on male sandhill cranes. As a consequence of the lack of breeding, and the inordinately high mortality experienced by this population, the project was phased out.

The whooping crane captive breeding program, initiated in 1967, has been very successful. The Service and the Canadian Wildlife Service (CWS) began taking eggs from the nests of the wild population in 1967, and raising the resulting young in captivity. Between 1967 and 1993, 181 eggs were taken from the wild to captive sites. Birds raised from those eggs form the nucleus of the captive flock (USFWS 1994). The captive population is now located at three primary locations: Patuxent Wildlife Research Center in Laurel, Maryland; the International Crane Foundation (ICF) in Baraboo, Wisconsin; and the Calgary Zoo in Alberta, Canada. An additional captive population was started in 1998 at the Audubon Species Survival Center in New Orleans, Louisiana.

The total captive population as of February 2001 stood at 120 birds, with 109 birds present in the 3 primary captive breeding centers, and an additional 11 birds present at 3 other locations. Six whooping cranes are located at the San Antonio Zoological Gardens, Texas; four at the Audubon Institute, New Orleans, Louisiana; and one at the Lowery Park Zoo in Tampa, Florida.

Whooping cranes adhere to ancestral breeding areas, migratory routes, and wintering grounds, leaving little possibility of pioneering into new regions. The only wild, self-sustaining breeding population can be expected to continue utilizing its current nesting location with little likelihood of expansion, except on a local geographic scale. This population remains vulnerable to destruction through a natural catastrophe (hurricane), a red tide outbreak, or a contaminant spill, due primarily to its limited wintering distribution along the intracoastal waterway of the Texas coast. The Gulf Intracoastal Water Way (GIWW) experiences some of the heaviest barge traffic of any waterway in the world. Much of the shipping tonnage is petrochemical products. An accidental spill could destroy whooping cranes and/or their food resources. With the only wild breeding population so vulnerable, it is urgent that additional wild self-sustaining populations be established as soon as practical.

The first recovery plan developed by the Whooping Crane Recovery Team (Team) was approved January 23, 1980. The first revision was approved on December 23, 1986, and the second revision on February 11, 1994. The short-term goal is to downlist the whooping crane from endangered to threatened. The criteria for attaining this downlisting goal is achieving a population level of 40 nesting pairs in the AWP and establishing 2 additional, separate, and self-sustaining populations consisting of 25 nesting pairs each. The recovery plan recommends these goals should be attained for 10 consecutive years before the species is reclassified to threatened. These new populations may be migratory or nonmigratory.

In 1985, the Director-General of the Canadian Wildlife Service and the Director of the U.S. Fish and Wildlife Service signed a memorandum of understanding (MOU) entitled “Conservation of the Whooping Crane Related to Coordinated Management Activities.” The MOU was revised and signed again in 1990 and 1995. It discusses disposition of birds and eggs, postmortem analysis, population restoration and objectives, new population sites, international management, recovery plans, consultation and coordination. All captive whooping cranes and their future progeny are jointly owned by the U.S. Fish and Wildlife Service and the Canadian Wildlife Service. Consequently, both nations are involved in recovery decisions.

In early 1984, pursuant to the recovery plan goals and the recommendation of the Team, potential whooping crane release areas were selected in the eastern United States. At that time the prognosis was favorable for successfully establishing a western population by use of the cross-fostering technique. Consequently, key considerations in selecting areas to evaluate for the eastern release were (1) large areas of potentially suitable wetland habitat; (2) a healthy sandhill crane population sufficient to support recovery using the cross-fostering technique; (3) public and State agency support for such a recovery effort in the release locale; (4) low-to-moderate levels of avian disease pathogens, environmental contaminants, and powerlines; (5) the potential of the habitats to simultaneously support whooping cranes and sandhill cranes; and (6) a reasonable certainty that the new population would not have contact with the AWP.

The areas identified were the Upper Peninsula of Michigan and adjacent areas of Ontario, the Okefenokee Swamp in southern Georgia, and three sites in Florida. The Michigan site was projected to eventually support a migratory population. The Georgia and three Florida sites would each support a nonmigratory population. The Michigan/Ontario wetlands are occupied by greater sandhill cranes that winter in Florida and the Okefenokee Swamp of Georgia. The wetlands in Georgia and Florida are occupied by the nonmigratory Florida sandhill crane ( Grus canadensis pratensis ) and in winter by greater sandhill cranes, which nest primarily in southern Ontario, Michigan, eastern Minnesota, and Wisconsin. Three-year studies were initiated at each site in October 1984 to evaluate their respective suitabilities.

Results of the studies were presented in written final reports to the Whooping Crane Recovery Team in fall 1987 (Bennett and Bennett 1987, Bishop 1988, McMillen 1987, Nesbitt 1988) and in verbal reports in February 1988. By 1988, the Team recognized that cross-fostering was not working to establish a migratory population in the West. The possibility of inappropriate sexual imprinting associated with cross-fostering, and the lack of a proven technique for establishing a migratory flock influenced the Team to favor establishing a nonmigratory flock. A nonmigratory population has features that make it easier to achieve success: (1) Released birds do not face the hazards of migration (over one half of the losses of fledged, cross-fostered birds occurred during migration); and (2) released birds inhabit a more geographically limited area year-round than do migratory cranes, which increases the opportunity for the cranes to find a compatible mate.

Studies of whooping cranes (Drewien and Bizeau 1977) and greater sandhill cranes (Nesbitt 1988) have shown that, for these species, knowing when and where to migrate is learned rather than innate behavior. Captive-reared whooping cranes released in Florida were expected to develop a sedentary population.

In summer 1988, the Team selected Kissimmee Prairie in central Florida as the area most suitable for the next experiment to establish a self-sustaining population. Since 1993, captive-reared birds have been released annually in an attempt to establish a resident, nonmigratory flock. We expect releases to continue for the foreseeable future.

In 1996, the Team decided to investigate the potential for another reintroduction site in the eastern United States, with the intent of establishing an additional migratory population. Following a study of potential wintering sites by Dr. John Cannon (Cannon 1998), the Team selected the Chassahowitzka NWR /St. Martin's Marsh Aquatic Preserve as the top wintering site for a new migratory flock of whooping cranes. Based on concerns that a reintroduced population in Saskatchewan or Manitoba might mix with the wild AWP, the Team requested that Dr. Cannon see if suitable summering sites were present in Wisconsin, an area well east of the AWP migration corridor. The location of the release area was chosen to fulfill the criteria set forth by the Whooping Crane Recovery Team, that is, to establish a new migratory flock in a location where there would be a minimal chance of contact with the existing natural wild flock. This criterion was established out of concern for adverse impacts to the wild flock due to exchange of disease or undesirable behavior between any newly established migratory flock and the existing wild flock.

After preliminary data were gathered, a decision was made in 1998 to focus on three potential release sites in Wisconsin: Crex Meadows State Wildlife Management Area (WMA), central Wisconsin including Necedah NWR and several Wisconsin WMAs, and Horicon NWR.

Detailed analysis was presented at the Team's meeting in September 1999 (Cannon 1999), and the Team then recommended that releases be started in central Wisconsin. This recommendation was based on the presence of suitable habitat and food resources, favorable local attitudes, and geographic separation from the AWP population. The recommendation also was contingent upon the results of studies to further clarify the level of risk to cranes at this location from two separate sources. These were risks from local contaminants in the form of agricultural chemicals, and the disturbance caused by aircraft overflights associated with operations at the nearby Hardwood Air-to-Surface Bombing Range. The two issues were investigated to the satisfaction of the Team with results indicating a minimal likelihood of occurrence for both concerns, although the Patuxent Wildlife Research Center may conduct noise impact studies on whooping crane chicks. The wintering site is the Chassahowitzka NWR in Florida.

The objectives of the reintroduction are: (1) To implement a primary recovery action for a federally listed endangered species; (2) to further assess the suitability of Wisconsin and the Gulf coast of Florida as whooping crane habitat; and (3) to evaluate the suitability of releasing captive-reared whooping cranes, conditioned for wild release, as a technique for establishing a self-sustaining, migratory population. Information on survival of released birds, movements, behavior, causes of losses, reproductive success, and other data will be gathered throughout the project. Project progress will be evaluated annually.

The likelihood of the releases resulting in a self-sustaining population is believed to be good. Whooping cranes historically occurred in the Upper Midwest, and the release area is similar to that which supported nesting whooping cranes in adjacent Illinois and Iowa. The minimum goal for numbers of cranes to be released annually is based on the research of Griffith et al. (1989). As captive production increases, annual release numbers will be increased, dependent upon availability. For a long-lived species like the whooping crane, continuing releases for a number of years increases the likelihood of reaching a population level that can sustain fluctuating environmental conditions. The rearing and release techniques have proven successful in building the wild population of the endangered Mississippi sandhill cranes.

It is expected that whooping cranes released in Wisconsin and wintering in Florida will eventually interact with the existing flock present in the Kissimmee Prairie area. Whooping cranes led to Chassahowitzka NWR behind the ultralight aircraft may choose not to stay in the coastal saltmarsh when released, or may return to the Kissimmee Prairie the following winter and interact with the nonmigratory flock. The nonmigratory population is prone to wander considerable distances, and has been observed outside of the area where introduction efforts are under way (Marty Folk, pers. comm.). Some interaction during winter between migratory and nonmigratory cranes is expected to occur. This raises the possibility that individual birds of each of the two flocks may acquire either migratory or nonmigratory behavior through association, especially if pairs form between members of the different populations. However, research with sandhill cranes in Florida has shown that migratory and nonmigratory populations mix during winter and yet maintain their own migratory and nonmigratory behaviors. The same would be expected with whooping cranes. In light of this knowledge, we expect that any shift in individual migratory behavior would be limited. Therefore, we expect that, even though individuals of the two populations may associate, the two flocks will remain distinct and each will represent a separate population as specified in the Whooping Crane Recovery Plan (USFWS 1994). As such, while the levels of protection will be the same, the two populations may be managed differently.

We may select additional release sites later during the project life to increase potential breeding range. Multiple release areas may increase the opportunity for successful pairing because females tend to disperse from their natal site when searching for a mate. Males, however, have a stronger homing tendency towards establishing their nesting territory near the natal area (Drewien et al. 1989). When captive-reared cranes are released at a wild location, the birds may view the release site as a natal area. If they do, females would disperse away from the release area in their search for a mate. In such a circumstance it may be advantageous to have several release sites to provide a broader distribution of territorial males. It is impossible, however, to predict which areas will be chosen by the birds. To allow for adapting release techniques that will maximize the chances for success, some flexibility will likely be necessary in the future. Therefore, it is possible that we will pursue future releases at other sites, which we may select based upon dispersal patterns observed in the cranes from initial releases. Several areas previously examined for suitability that may be candidates for future releases (Cannon 1999) include Horicon NWR and Crex Meadows State WMA in Wisconsin, and Seney NWR in the Upper Peninsula of Michigan.

This project has been coordinated with potentially affected State and Federal agencies, private landowners, and the general public. The Wisconsin Department of Natural Resources (DNR) manages several wildlife management areas in the primary release area; the Wisconsin DNR will be actively involved as a cooperator in releases, and has actively endorsed the project. The Canadian Wildlife Service, a partner with the U.S. Fish and Wildlife Service as noted in the Memorandum of Understanding, has approved the project. The project also was coordinated with both of the State of Florida's natural resource management agencies, particularly regarding migration and wintering aspects of the project. The Florida Fish and Wildlife Conservation Commission (FWCC), the State agency with responsibility for management of fish and wildlife resources, has expressed its support of the project. The Florida Department of Environmental Protection (DEP) is charged with environmental protection and administration of Florida's public conservation and recreation lands. We coordinated with the Florida DEP and received approval for use of the St. Martin's Marsh Aquatic Preserve during the overwintering phase of the sandhill crane migration experiment conducted in 2000-2001. We do not anticipate further involvement by the Florida DEP for the whooping crane reintroduction. If use of State lands becomes necessary in the future, we will coordinate further to obtain additional approvals.

We also have coordinated with the Department of Defense (Hardwood Air-to-Surface Bombing Range), which conducts training flights in the vicinity of Necedah NWR, and other landowners near the release site to advise them of the proposed whooping crane reintroduction and obtain their input. All have been cooperative and generally supportive of the project.

We will conduct an initial release of 10 to 25 juvenile, captive-reared whooping cranes in the central Wisconsin area. These birds will be captive-reared to 20-40 days of age at Patuxent Wildlife Research Center in Laurel, Maryland, the International Crane Foundation in Baraboo, Wisconsin, and at other captive-rearing facilities. They will then be transferred to facilities at the Wisconsin release site, and conditioned for wild release to increase post-release survival (Ellis et al. 1992b, Zwank and Wilson 1987) and adaptability to wild foods. The cranes will be radio-tagged at release and monitored to discern movements, habitat use, other behavior, and survival. Whooping cranes would be released in the fall. The primary technique associated with migration will be leading the cranes by ultralight aircraft to the wintering site in Florida. If results of this initial release are favorable, releases will be continued with the goal of releasing up to 30 whooping cranes annually for about 10 years. Total numbers available for release will be dependent upon production at captive propagation facilities and the future need for additional releases into the Kissimmee flock.

Since the migration route is a learned rather than an innate behavior, captive-reared whooping cranes released in Wisconsin, or other northern areas of suitable habitat, will need to be taught where to migrate in order to develop the habit of migrating to a suitable wintering area. Captive-reared cranes are conditioned for wild release by being reared in isolation from humans; by use of conspecific role models (puppets), and by exercising with animal care personnel in crane costumes to avoid imprinting on humans (Ellis et al. 1992a, Horwich 1989, Urbanek and Bookhout 1992). This technique has been successful in supplementing the population of endangered nonmigratory Mississippi sandhill cranes ( Grus canadensis pulla ) (Zwank and Wilson 1987, Ellis et al. 1992b). Aircraft motor sounds are played to young crane chicks to get them acclimatized to engine noise. The “following” instinct of crane chicks is utilized to get them conditioned to walk behind motorized vehicles and/or aircraft. Once acclimatized, the cranes will follow the taxiing ultralight aircraft and soon learn to fly behind the ultralight. Using this technique (Clegg et al. 1997, Lishman et al. 1997), sandhill cranes were led in migration between Ontario and Virginia in 1997; four whooping cranes and eight sandhill cranes were taught a migration between Idaho and New Mexico in 1997. In a further migration experiment, eleven sandhill cranes were led from Wisconsin to Florida by ultralight aircraft in the fall of 2000. At least nine of the eleven cranes returned on their own to the release site in Wisconsin in the spring of 2001. The status of the other two cranes is unknown; they have not been sighted, nor were their radio-transmitted signals recorded as of May 2001. They may have returned as well, but were not detected because their radio transmitters may have malfunctioned, or because they returned to a remote area unmonitored.

Several different strategies for accomplishing migration to the Florida wintering site may be utilized: (1) Leading the cranes using an ultralight aircraft that the birds have been conditioned to follow; (2) allowing the released whooping cranes to migrate guided by wild sandhill cranes (Urbanek and Bookhout 1994), or after the first year, guided by previously released whooping cranes; or (3) some combination of these two techniques. The rationale is to use the technique that is thought to have the highest probability of success, but to retain the option of using another potentially promising technique if conditions warrant. As the project proceeds, the intent is to use techniques that seem reasonable in light of present understanding of whooping crane biology. However, for the first fall migration season, the primary technique is expected to be use of the ultralight aircraft to lead the cranes to the chosen wintering site in Florida; birds not trainable to follow aircraft may be released with wild sandhills and then relocated to the appropriate wintering area or returned to captivity.

We determine this reintroduction to be nonessential to the continued existence of the species according to the provisions of section 10(j) of the Act. This designation is justified because no adverse effects to extant wild or captive whooping crane populations will result from release of progeny from the captive flock. We also have a reasonable expectation that the experiment will result in the successful establishment of a self-sustaining, migratory flock, which will contribute to the recovery of the species. The special rule is expected to ensure that this reintroduction is compatible with current or planned human activities in the release area.

We have concluded that this experimental population is nonessential to the continued existence of the whooping crane for the following reasons:

(a) For the time being, the AWP and the captive populations will be the primary species populations. With approximately 120 birds in captivity at 6 discrete sites, and approximately 176 birds in the AWP, the experimental population is not essential to the continued existence of the species. The species has been protected against the threat of extinction from a single catastrophic event by gradual recovery of the AWP and by increase and management of the cranes at the captive sites. Loss of the experimental population will not jeopardize the species' survival.

(b) For the time being, the primary repository of genetic diversity for the species will be the approximately 296 wild and captive whooping cranes mentioned in (a) above. The birds selected for reintroduction purposes will be as genetically redundant as possible with the captive population, hence any loss of reintroduced animals in this experiment will not significantly impact the goal of preserving maximum genetic diversity in the species.

(c) Any birds lost during the reintroduction attempt can be replaced through captive breeding. Production from the extant captive flock is already large enough to support the release of birds for this project, in addition to continued releases into the Kissimmee Prairie flock, with over 30 juveniles available annually. We expect this number to increase to over 40 as young pairs already in captivity reach breeding age. This illustrates the potential of the captive flock to replace individual birds proposed for release in reintroduction efforts.

The hazards and uncertainties of the reintroduction experiment are substantial, but a decision not to attempt to utilize the existing captive breeding potential to establish a second, wild, self-sustaining population could be equally hazardous to survival of the species in the wild. The AWP could be annihilated by catastrophic events such as a Gulf coast hurricane or a contaminant spill on the wintering grounds that would necessitate management efforts to establish an additional wild population. The recovery goal of 3 self-sustaining wild populations—consisting of 40 nesting pairs in the AWP and 2 additional, separate and self-sustaining, populations consisting of 25 nesting pairs each—should be in existence before the whooping crane can be downlisted to threatened status. Dependent upon future events, the nonmigratory Florida population would potentially be the second such population. An eastern U.S. migratory flock could be the third population. If this reintroduction effort is successful, conservation of the species will have been furthered considerably by establishing another self-sustaining population in currently unoccupied habitat. It would also confirm that captive-reared cranes can be used to establish a migratory, wild population.

Section 10(j) of the Act requires that an experimental population be geographically separate from other populations of the same species. The designated NEP area covers most of the eastern United States, with the expectation that most whooping cranes would be concentrated within the States of Wisconsin and Florida, as well as adjacent States, and those States within the migration corridor. States within the NEP area include Alabama, Arkansas, Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, North Carolina, Ohio, South Carolina, Tennessee, Virginia, West Virginia, and Wisconsin. All of these States are considered to be within the probable historic range of the species. Any whooping crane found within this area will be considered part of the experimental population. Initial releases are planned for central Wisconsin, with plans for a wintering location on the Florida Gulf coast. It is difficult to predict where individual whooping cranes may disperse following release within the project area. Designation of this NEP allows for the possible occurrence of cranes anywhere within most of the eastern United States.

The potential release areas in Wisconsin include Necedah NWR, Horicon NWR, and Crex Meadows State Wildlife Management Area. Initial releases will be at the Necedah NWR in Juneau County, Wisconsin. The location of future releases will depend upon habitat use and dispersal patterns of released cranes.

A majority of the movements of the released cranes are expected to occur within the central Wisconsin area, which comprises approximately 2,000 square kilometers characterized by a mosaic of forest and open wetlands. Numerous small streams cut across the landscape, many of which have been ditched for purposes of agricultural drainage. Much of the landscape is forested, consisting of mixed forests interspersed with open expanses of sedge and shrub wetlands, small streams and ponds.

On surrounding private lands, a significant amount of historic wetland habitat has been converted to cranberry culture. Land ownership includes a number of larger private holdings devoted to cranberry production and six large public ownerships totaling 83,222 hectares (ha) (205,651 acres). County-owned lands within the four-county area surrounding Necedah NWR include significant acreage, primarily devoted to forestry, totaling 65,810 ha (162,624 ac).

The principal private land uses are forestry, cranberry culture and other agriculture, and recreational hunting. Upland forests are managed for sawtimber and firewood production, on either a clear-cut rotational basis or selective harvest, dependent upon forest type and management objectives. Wetland habitat utilized for cranberry culture is managed mainly through the manipulation of water regime, in the form of seasonal flooding. The public lands are managed for wildlife values, recreation, water conservation, and to maintain natural habitat conditions. Compared to other areas in Wisconsin, the central Wisconsin area has experienced limited human population growth over the past 30 years due to its distance from major population centers and low suitability for agriculture. The presence of large public land holdings is at least in part a result of unsuccessful agricultural development. Cannon (1999) has estimated that approximately 37,000 ha (92,000 ac) of suitable whooping crane habitat exists in the central Wisconsin area.

The primary wintering site is on the Chassahowitzka NWR, of which 55 percent (6,908 ha or 17,070 ac) is suitable crane habitat. The refuge comprises over 12,500 ha (31,000 ac) of saltwater bays, estuaries, and brackish marshes with a fringe of hardwood swamps along the eastern boundary. Dispersed throughout the salt marsh in a jigsaw puzzle fashion is 4,048 ha (10,000 ac) of estuarine habitat in the form of shallow bays and tidal streams; the largest of the streams being the Chassahowitzka and Homosassa Rivers. Because of three transitional salinity stages (ranging from fresh spring water, to brackish, and then to the saline waters of the Gulf of Mexico), a wide range of aquatic plant and animal life flourishes within all parts of the system. A wintering site study (Cannon 1998) rated Chassahowitzka NWR as an excellent site for wintering whooping cranes based on available habitat, adjacent expansion possibilities, adequate isolation, and abundant food resources.

Adjacent to the Chassahowitzka NWR, are two State of Florida-owned properties that support suitable crane habitat the wintering cranes may occasionally use. These areas are the 36,000-acre (14,568 ha) St. Martin's Marsh Aquatic Preserve and the 9,308 ha (23,000 ac) Crystal River State Buffer Preserve. Both sites contain habitats similar to those in Chassahowitzka NWR.

Whooping cranes will be intensively monitored by project personnel prior to and after release. The birds will be observed daily while they are in the conditioning pen. Facilities for captive maintenance of the birds will include the same facilities used for sandhill cranes during an experimental migration project in 2000; these facilities were modeled after facilities at the U.S. Geological Survey's Patuxent Wildlife Research Center (PWRC) and the International Crane Foundation. They conform to standards set forth in the Animal Welfare Act and Florida Wildlife Code (Title 39.6 F.A.C). To further ensure the well-being of birds in captivity and their suitability for release to the wild, facilities incorporate features of their natural environment (e.g., feeding, loafing, and roosting habitat) to the extent possible. Pre-release conditioning will occur at facilities near the release site.

To ensure contact with the released birds, each crane will be equipped with legband-mounted radio telemetry transmitters. Subsequent to gentle-release, the birds will be monitored regularly to assess movements and dispersal from the area of the release pen. Whooping cranes will be checked regularly for mortality or indications of disease (e.g., listlessness, social exclusion, flightlessness, or obvious weakness). Social behavior (e.g., pair formation, dominance, cohort loyalty) also will be evaluated.

A voucher blood serum sample will be taken for each crane prior to its arrival in Wisconsin. A second sample will be taken just prior to release. Any time a bird is handled after release, a blood sample may be taken to monitor disease exposure and physiological condition. One year after release, when possible, all surviving whooping cranes may be captured and an evaluation made of their exposure to disease/parasites through blood, fecal, and other sampling regimens. Monitoring will continue, opportunistically, for multiple years whenever cranes are recaptured to replace radio transmitters. If preliminary results are favorable, the releases will be continued annually, with the goal of releasing up to 30 birds per year for about 10 years and then evaluating the success of the recovery effort.

Both sandhill and whooping cranes are known to be vulnerable, in part or all of their natural range, to avian herpes (inclusion body disease), avian cholera, acute and chronic mycotoxicosis, eastern equine encephalitis (EEE), and avian tuberculosis. Additionally, Eimeria spp., Haemogroteus spp., Leucocytozoon spp., avian pox, lead poisoning, and Hexamita sp. have been identified as debilitating or lethal factors in wild or pre-release, captive populations.

A group of crane veterinarians and disease specialists have developed protocols for pre-release and pre-transfer health screening for birds selected for release to prevent introduction of diseases and parasites into the eastern flyway. Exposure to disease and parasites will be evaluated through blood, serum, and fecal analysis of any individual crane handled post-release or at the regular monitoring interval. Remedial action will be taken to return to good health any sick individuals taken into captivity. Sick birds will be held in special facilities and their health and treatment monitored by veterinarians. Special attention will be given to EEE because an outbreak at the PWRC in 1984 killed 7 of 39 whooping cranes present there. After the outbreak, a vaccine was developed for use on captive cranes. In 1989, EEE was documented in sentinel bobwhite quail and sandhill cranes at the PWRC. No whooping cranes became ill, and it appears the vaccine may provide protection. EEE is present in Wisconsin, so the released birds may be vaccinated. Other strains of encephalitis (St. Louis, Everglades) also occur in Wisconsin. The vaccine for EEE may also provide protection against these arboviruses.

When appropriate, other avian species may be used to assess the prevalence of certain disease factors. This could mean using sentinel turkeys for ascertaining exposure probability to encephalitis or evaluating a species with similar food habits for susceptibility to chronic mycotoxicosis.

The ultimate genetic goal of the reintroduction program is to establish wild reintroduced populations that possess the maximum level of genetic diversity available from the captive population. Early reintroductions will likely consist of a biased sample of the genetic diversity of the captive gene pool, with certain genetic lineages over-represented. This bias will be corrected at a later date by selecting and re-establishing breeding whooping cranes that, theoretically, compensate for any genetic biases in earlier releases.

Although efforts will be made to minimize mortality, some will inevitably occur as captive-reared birds adapt to the wild. Collision with power lines and fences are known hazards to wild whooping cranes. No major power lines cross the release or wintering sites. Tall woven-wire and barbed-wire fencing is commonly used in the central Wisconsin area and presents some collision hazard. If whooping cranes begin regular use of areas traversed by power lines or fences, the Service and Wisconsin DNR will consider placing markers on the obstacles to reduce the probability of collisions.

Wolves are known predators of adult sandhill cranes and would be potential predators of adult whooping cranes, as would coyotes and bald eagles. Red fox, bobcats, owls, and raccoons are potential predators of young cranes. Natural mortality from predators, fluctuating food availability, disease, and wild feeding inexperience will be reduced through predator management, vaccination, gentle release, supplemental feeding for a post-release period, and pre-release conditioning. This conditioning will include teaching the habit of roosting in standing water. Predation by bobcats has been a significant source of mortality in the Kissimmee Prairie, Florida flock, and teaching this roosting behavior to young birds should help to reduce losses to wolves, coyotes, and bobcats. Human-caused mortality will be reduced by information and education efforts directed at landowners and land users, and review and management of human activities in the area.

Recently released whooping cranes will need protection from natural sources of mortality (predators, disease, and inadequate foods) and from human-caused sources of mortality. We will minimize human-caused mortality through a number of measures such as: (a) Placing whooping cranes in an area with low human population density and relatively low development; (b) working with and educating landowners, land managers, developers, and recreationists to develop means for conducting their existing and planned activities in a manner that is compatible with whooping crane recovery; and (c) conferring with developers on proposed actions and providing recommendations that will reduce any likely adverse impacts to the cranes.

The Service, State employees, and their agents are authorized to relocate whooping cranes to avoid conflict with human activities; relocate whooping cranes that have moved outside the appropriate release area or the NEP area when removal is necessary or requested; relocate whooping cranes within the NEP area to improve survival and recovery prospects; and aid animals that are sick, injured or otherwise in need of special care. If a whooping crane is determined to be unfit to remain in the wild, it will be returned to captivity. The Service, State employees, and their agents are authorized to salvage dead whooping cranes.

Conflicts have resulted in the central and western United States from the hunting of migratory birds in areas utilized by whooping cranes, particularly the hunting of sandhill cranes and snow geese ( Chen cerulescens ), which to novice hunters may appear similar to whooping cranes.

In recent years, only two to three crane mortalities have been documented incidental to hunting activities. Sandhill cranes are not hunted in Wisconsin although a future hunting season is being considered, and snow geese are an uncommon migrant and have not been present in large numbers. Sandhill cranes and snow geese are not hunted in the area of the wintering site in Florida. Accidental shooting of a whooping crane in this experimental population occurring in the course of otherwise lawful hunting activity is exempt from take restrictions under the Act in this special regulation. Applicable Federal penalties under the Migratory Bird Treaty Act and/or State penalties, however, may still apply. We will minimize mortality due to accidental shootings by providing educational opportunities and information to hunters to assist them in distinguishing whooping cranes from legal game species. There will be no federally mandated hunting area or season closures or season modifications, including conservation order seasons, resulting from the establishment of the eastern U.S. whooping crane NEP.

We established a conservation order in a final rule published in the December 20, 1999, Federal Register (Volume 64, Number 243). The conservation order is aimed at reducing the populations of lesser snow geese ( Anser caerulescens caerulescens ) and Ross' geese ( Anser rossii ) that breed, migrate, and winter in the mid-continent portion of North America, primarily in the Central and Mississippi Flyways. These geese are referred to as mid-continent light geese (MCLG). We established the order allowing take of the geese to prevent further habitat degradation by the MCLG population, which had reached such a high level that the geese were seriously injuring their arctic and subarctic breeding grounds through their feeding actions. We set a management goal to reduce the MCLG by 50 percent by the year 2005. The conservation order can be implemented in the States, or portions of States, contained within the boundaries of the Central and Mississippi Flyways, including Alabama, Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Mexico, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Wisconsin, and Wyoming.

The bulk of traditional hunting in the primary release area has been for deer ( Odocoileus virginianus ), turkey ( Meleagris gallopavo ), and small game. Conflict with traditional hunting in the release area is not anticipated. Access to some limited areas at release or wintering sites and at ultralight migration stopover points could be temporarily restricted at times when whooping cranes might be particularly vulnerable to human disturbance (i.e., around rearing and training facilities in the spring/summer and conditioning and holding pens in the fall/winter). Any temporary restricted access to areas for these purposes will be of the minimum size and duration necessary for protection of the NEP cranes, and will be closely coordinated with and at the discretion of the respective States. Any such access restrictions will not require Federal closure of hunting areas or seasons.

States within the NEP area maintain their management prerogatives regarding the whooping crane. They are not directed by this rule to take any specific actions to provide any special protective measures, nor are they prevented from imposing restrictions under State law, such as protective designations, and area closures. None of the States within the NEP area have indicated that they would propose hunting restrictions or closures related to game species because of the whooping crane reintroduction.

Overall, the presence of whooping cranes is not expected to result in placement of constraints on hunting of wildlife or to affect economic gain landowners might receive from hunting leases. The potential exists for future hunting seasons to be established for other migratory birds that are not currently hunted in some of the States within the NEP area. The action will not prevent the establishment of future hunting or conservation order seasons approved for other migratory bird species by the Mississippi or Atlantic Flyway Councils.

The principal activities on private property adjacent to the release area are agriculture and recreation. Use of these private properties by whooping cranes will not preclude such uses. The special regulation accompanying this rule authorizes incidental take of the whooping crane in the NEP area when the take is accidental and incidental to an otherwise lawful activity.

An additional issue identified as a possible conflict is the potential for crop depredation. There is evidence that some sandhill cranes have caused locally significant losses of emerging corn in some areas in Wisconsin. It is possible that whooping cranes could engage in this type of behavior as well. Whooping cranes are socially less gregarious than sandhill cranes, and tend to restrict the bulk of their foraging activities to wetland areas. Therefore, they are believed to be less likely to cause significant crop depredations. If such depredations occur, they can be eliminated through use of bird scaring devices and other techniques. Ongoing research on seed treatments as a deterrent to corn depredation is promising (Blackwell, Helon and Dolbeer, in press).

Other agricultural crops found in the release area include cranberries. Some concern has been expressed that whooping cranes may consume cranberries. Although potential habitat is present near cranberry operations, cranberries are not likely to be an attractive food item as compared to animal matter, during most of the time period that whooping cranes would be present in Wisconsin. Cranberry beds are flooded at harvest time, and when large numbers of berries are gathered they could be more vulnerable to depredation. However, this event occurs in late fall, after whooping cranes would have departed for their wintering grounds. In addition, the numerous sandhill cranes in Wisconsin have not caused cranberry crop depredation. Therefore, we do not expect that whooping cranes will pose a significant threat to crop depredation on cranberries.

Released whooping cranes might wander into other States or other locations in the eastern United States outside of the expected migration corridor, or even outside the NEP area. We believe the frequency of such movements is likely to be low. Any whooping cranes that leave this experimental population area will be considered endangered. However, for any whooping cranes known to be from the eastern United States NEP, that move outside the NEP area, including those that move into the migration corridor of the AWP, attempts will be made to capture and return them to the appropriate area if a reasonable possibility exists for contact with the AWP population or if removal is requested by the State which they enter.

Birds from the AWP flock have rarely been observed in any of the States within the NEP area except as a result of an extreme weather event; they are expected to be in the NEP area very infrequently and only temporarily. Any whooping cranes that occur within the NEP area will be considered to be part of the NEP and will be subject to the protective measures in place for the NEP. Because of the extremely limited number of incidents anticipated, the decreased level of protections afforded AWP cranes that cross into the NEP is not expected to have any significant adverse impacts to the AWP.

For at least the first year of project life, whooping cranes will be led to the Florida wintering site utilizing ultralight aircraft and stopping at a series of previously chosen stopover locations en route. During subsequent migration periods, it will be difficult to predict which specific sites will be utilized by the birds, and some cranes may use stopover sites with which they have no previous experience. Whooping cranes that appear in undesirable locations while in migration will be considered for relocation by capture and/or hazing of the birds. Possible conflicts with recreational and agricultural interests within the migration corridor will be minimized through an extensive public education program.

Access to whooping cranes may be temporarily restricted in limited areas near rearing and acclimatization facilities and at ultralight migration stopover locations to minimize disturbance at times of greatest vulnerability and sensitivity. Any temporarily restricted access to areas for these purposes will be, (1) of the minimum size and duration necessary for protection of the NEP cranes, (2) will not require Federal closure of hunting or conservation order areas or seasons, and (3) will be closely coordinated with and at the discretion of the respective States.

We held public meetings in Florida in December of 1997 and in Wisconsin in May of 1999, to determine public interest and concerns regarding the potential reintroduction of a migratory flock of whooping cranes to the eastern United States. In 1999, the Service, the Wisconsin DNR, and International Crane Foundation representatives met to identify issues and concerns related to whooping crane reintroduction.

The Wisconsin and Florida informational meetings offered the general public an opportunity to review and offer informal comments on the proposed action. The public has appeared extremely supportive of the proposed action, provided it does not interfere with existing lifestyles and current and potential income. We attempted to notify all known or determinable affected parties and other interested agencies, groups, and individuals of the opportunity to comment on this rule. We held four public hearings during the public comment period as a further measure to encourage public input on the proposed action. We have incorporated those comments into this final rule.

We have made presentations to numerous organizations and potentially affected interest groups, government representatives of States along the potential migration route, the Atlantic and Mississippi Flyway Councils and their Technical Sections, the Wisconsin Natural Resources Board, the Florida Fish and Wildlife Conservation Commission (FLFWCC), and other interested agencies to obtain input on the potential for reintroduction of a migratory whooping crane population in the eastern United States. We have conducted extensive coordination, both formal and informal, with all States within the NEP area. We asked all States to give their formal endorsement to the project prior to implementation, and we have received the concurrence and support of all States within or adjacent to the expected migration corridor.

An extensive sharing of information about the program and the species, via educational efforts targeted toward the public throughout the NEP area and nationally, will enhance public awareness of this species and its reintroduction. We will encourage the public to cooperate with the Service, Wisconsin DNR, and the Florida FWCC in attempts to maintain and protect whooping cranes in the release areas and wintering area.

In the March 9, 2001, proposed rule (66 FR 14107), we requested comments or recommendations concerning any aspect of the proposal that might contribute to development of the final decision on the proposed rule. A 45-day comment period was provided. We sent copies of the rule and other informational materials about the project to State and Federal agencies, Congressional representatives, Tribes, Flyway Councils, conservation and hunting groups, and numerous private citizens who had expressed an interest in receiving further information on the project.

Changes in the final rule as a result of public comments: Minor changes have been made to the special rule as a result of comments received. These additions or changes do not alter the predicted impact or effect of the final rule:

1. We amended 50 CFR 17.84(h)(8) to include conservation order seasons to clarify areas where there will be no federally mandated closures of areas or closures or modification of hunting seasons for protection of this NEP.

2. We also clarified, within § 17.84(h)(8), that we would remove clearly marked individuals of this NEP from States outside of the boundaries of the NEP, when requested by the State.

We held four public hearings to receive comments on the proposed rule, at locations along the expected migration corridor. We received a total of 116 responses on the proposed rule, including 16 oral and 100 written comments. Of these comments, 14 were from State, county, or city governments, 87 were from individuals, 14 were from organizations and industry, and 1 was from Canada. Of these commentors, 94 supported the proposal of designating a nonessential experimental population, 9 expressed support under certain conditions, 10 disagreed with certain aspects of the proposal, 3 expressed no position, and none expressed direct opposition. Analysis of the comments revealed 11 issues that are identified and discussed below.

Issue 1: Reintroduction should be pursued in the Rocky Mountain States, along a migration corridor that was utilized in previous reintroduction attempts. The Service should not forget the Rocky Mountain flyway, and should keep this option open for some future reintroduction effort.

Our Response: The current proposal for reintroduction in the eastern United States reflects the most recent recommendation of the International Whooping Crane Recovery Team. This recommendation was arrived at only after complete and careful consideration of all factors likely to influence the re-establishment of another self-sustaining flock of whooping cranes, to contribute towards recovery of the species. Some of these factors are discussed within the “Background” section in this rule. Factors addressed include the presence of suitable breeding and wintering habitat and food resources, geographic separation from the existing natural wild flock, and support from States and the public. All States within the NEP area have gone on record as supporting the project. While some segments of the western public continue to be very supportive of reintroduction efforts in the western United States, not all the States within the Rocky Mountain flyway are supportive of reintroduction of the whooping crane in that area. Some aspects of reintroduction in the Rocky Mountain States hold promise, and the area will remain under consideration for a future reintroduction when conditions are more favorable for the effort.

Issue 2: No closures of hunting areas should occur due to the presence of NEP whooping cranes. In addition, the Service should include conservation order seasons when discussing hunting seasons.

Our Response: We will not mandate any closure of areas, including National Wildlife Refuges, during hunting seasons or closure or modification of hunting seasons for the purpose of avoiding take of the NEP. While this will preclude federally mandated closures within the NEP area, States still retain the power to impose closures at their discretion. However, no States have indicated any desire to institute such closures. We agree that adding conservation seasons is more in line with our intent of this section of the rule. We have modified the final rule to include conservation order seasons.

Issue 3: The Act should be modified to provide protections against “citizen lawsuits” to prevent groups or individuals from filing suit at some future date forcing the Service to institute protective measures for this NEP that adversely affect private property rights.

Our Response: We have made every effort to ensure that the reintroduction proposal covered by the rule does not interfere with private property rights. This rule provides that take of whooping crane that is accidental and incidental to an otherwise lawful activity is not prohibited. Activities such as agricultural practices, pesticide application, water management, construction, recreation, trapping, or hunting, if performed in the above described manner, should continue as before. We are the Federal agency given responsibility for administration of the Act; however, we do not have independent authority to revise the Act to provide protection from citizen lawsuits; that would require an act of Congress.

Issue 4: Eastern U.S. NEP cranes or their offspring could stray into the Central Flyway States at some future date resulting in adverse effects to the AWP, or to ongoing human activities. All released cranes, and all their future progeny, should be permanently marked so they could be monitored, and removed from any undesirable areas (i.e., Central Flyway States).

Our Response: We will mark all released cranes with color bands and/or radio or satellite transmitters, and implant coded electronic microchips under the skin which will allow identification of these birds even if the transmitters or bands are lost. In addition, we will make every effort within the 10-year life of the project, to capture and similarly apply color bands to any future offspring of reintroduced NEP whooping cranes. This would be accomplished by capturing and marking offspring prior to fledging. With little nesting expected during the early phase of the project, we believe that nearly all young birds would be captured and marked. Later in the project, however, it may become more difficult to mark offspring if increased nesting occurs in remote locations. For at least the 10-year life of the reintroduction project, the color banding of all offspring will include attempts to capture any unmarked juvenile cranes that migrate with, and are clearly part of, NEP family groups.

Issue 5: Any whooping crane originating from eastern U.S. reintroduction efforts should maintain the NEP status, even if one occurs outside the designated NEP area.

Our Response: If one or more whooping cranes from the eastern U.S. NEP moves out of the designated eastern U.S. NEP area, the status of those birds would then be considered endangered. Section 10(j) of the Act, which provides for the establishment of experimental populations, directs that experimental populations be delineated by geographic boundaries, and that an NEP cannot overlap or include currently occupied range of the species. In the event that one of the eastern U.S. NEP whooping cranes wanders into the Central Flyway, we will immediately initiate discussions with the involved State or States to determine the appropriate action to take. This action could include non-intervention if the crane is moving through on migration and no adverse impacts are expected, or some form of intervention to attempt to remove or relocate the bird or birds, if determined necessary by us or if requested by the involved State. As provided for in paragraph (8)(i) and (ii) of this final rule, the course of action will not include closure of hunting areas or seasons, including those pertaining to conservation orders, for the purpose of protecting individual cranes known to have originated from the eastern U.S. whooping crane NEP.

The Service, the recovery team, and the reintroduction partnership, in consultation with the States, will constantly evaluate the behavior of all reintroduced cranes and will attempt to remove or relocate birds that exhibit unsatisfactory behavior. In addition, we will reevaluate the eastern U.S. whooping crane reintroduction if significant numbers of cranes move into the Central Flyway on a routine basis, or if any mixing with the AWP population occurs. The reevaluation could result in modifications to the project, or termination if warranted. Mixing of the AWP and eastern U.S. reintroduced population is undesirable due to the potential for disease transmission or other adverse impacts and was a primary reason for the recovery team recommendation to pursue the Wisconsin-to-Florida migration route. Based upon research with sandhill cranes, and migration behavior of the AWP population, it is believed that any mixing which may occur will be extremely rare. However, we agree to manage eastern U.S. NEP whooping cranes that move into the Central Flyway to the maximum extent possible to prevent disruption of human activities, but still meet the requirements of the Act.

Issue 6: It is inappropriate to allow for penalties less than those of the Act in the event of an accidental shooting. Current restrictions against the illegal take of protected migratory birds, as well as those restrictions in place for the Mexican wolf, a federally listed endangered species, dictate that the hunter is responsible for identification of their quarry before shooting.

Our Response: We stated in the proposed rule that in the event an accidental shooting occurred in the course of an otherwise lawful activity (i.e., hunting in accordance with all laws and regulations), Endangered Species Act penalties would not apply; however, applicable Federal penalties under the Migratory Bird Treaty Act and/or State penalties may still apply. The incidental take provision was proposed in an effort to allay concerns of hunters and other sectors of the public. They were concerned that their property rights, business, or recreational activities would be negatively impacted by Federal restrictions and penalties if a whooping crane was injured or killed accidentally as a result of an activity they were carrying out legally. We do not believe this provision of our regulation is likely to lead to the increased incidence of illegal shooting of whooping cranes. In recent years, shootings, intentional or otherwise, of wild whooping cranes from the AWP flock or the reintroduced Florida nonmigratory NEP have been rare. We believe that mortality to the eastern U.S. whooping crane NEP from shooting, even with the relaxation of penalties in place, is likely to be low. Substantial outreach efforts will be made to seek the cooperation of the hunting public and emphasize species identification to minimize potential mishaps. In the event a whooping crane is shot intentionally, (for example, if shot deliberately when no hunting season was open), the penalties of the Act would still apply.

Issue 7: Tax dollars should not be spent on this project or any other endangered species recovery effort.

Our Response: We are responsible for the protection and recovery of federally listed threatened and endangered species, as mandated by the Act. The Act does not provide us with the discretion to refuse to pursue recovery of any individual species; rather, we are mandated to apply our resources in an effective manner to accomplish the recovery of all federally listed species. This project is being coordinated with the multiple-partner Whooping Crane Eastern Partnership (WCEP), a collaborative group of government and non-government entities working together to accomplish the reintroduction of the whooping crane to the eastern United States. The WCEP is committed to raising over 50 percent of the project budget from private sources. This will reduce the amount of Federal tax dollars necessary to implement the project.

Issue 8: Wild sandhill cranes should not be used to guide released whooping cranes to the wintering area. The Service has not demonstrated the ability to retrieve whooping cranes from the central Florida sandhill crane wintering grounds and bring them to the desired wintering location at Chassahowitzka NWR.

Our Response: We agree that it may prove difficult to retrieve whooping cranes that migrate to central Florida and relocate them to Chassahowitzka NWR. However, we support the recovery team's recommended approach that multiple reintroduction methods be available so that strategies may be adapted to a wide range of possible scenarios in accomplishing this reintroduction. We will not use the wild sandhill crane guided migration method for the first year of the project. As indicated in the “Reintroduction Protocol” section, we will use ultralight aircraft to lead the initially released whooping cranes in migration to Florida. In the future, before we consider using wild sandhill cranes to guide released whooping cranes in migration, we will consult with the State of Florida and obtain the State's concurrence before proceeding with that approach.

Issue 9: It is appropriate to expand the proposed NEP area to include the 11 additional northeastern States discussed in the proposed rule. To do so at this time would be an efficient use of the Service's rulemaking resources, rather than putting off this action until a later date.

Our Response: In the proposed rule, we specifically asked for comments on the appropriateness of including 11 additional States in the northeastern United States in the designated eastern U.S. whooping crane NEP area. This action could help minimize potential for conflicts with human activities that may result from an eastern United States NEP whooping crane wandering into one of those States, where the status of such birds would be considered as endangered. During the comment period we received one comment about adding the States to the NEP. No comments were received from any of the 11 northeastern States. After further consideration, we have decided that including those States within this NEP area is not necessary at this time. We believe the likelihood that a whooping crane from the eastern U.S. NEP will stray into those States is slight. If future movements of whooping cranes indicate that including the northeastern States within the eastern United States NEP area would be prudent, we will consult with the affected States and propose adding them through a separate rulemaking.

Issue 10: Why are species still considered endangered when humans can clone animals and any living thing?

Our Response: While cloning techniques have advanced significantly during the past few years, and it is now technically possible to clone higher organisms, the technology is far from being perfected to a point where it could be applied on an operational scale. In addition, extensive questions and issues still remain from many standpoints including science, genetics, ethics, economic feasibility, as well as national and international laws and policies. As such, it is premature to consider cloning as a viable strategy for restoring endangered species. Even if cloning does prove to be effective in the future, it is not likely that cloning would be implemented exclusively as the only method used to achieve species' recovery. In addition, the purpose of the Act goes beyond restoring the number of individuals but is to conserve populations in the wild and the ecosystems upon which they depend.

Issue 11: Whooping cranes should not be released in Wisconsin because of the potential for agricultural damage by the birds. Reintroduction efforts should be pursued using release sites in Michigan.

Our Response: We believe the potential for adverse impacts to agriculture by whooping cranes is low due to the small number of birds that will be present and the habitat and food preferences of whooping cranes. Because they prefer shallow, open-water marsh habitat and food is primarily aquatic animal matter (e.g., aquatic insects, invertebrates, minnows, frogs), the whooping cranes are not likely to cause agricultural damage. In the Environmental Assessment, we analyzed all reasonable alternatives for conducting the whooping crane reintroduction into the eastern United States, including establishing release sites in Michigan. Based upon careful consideration of all factors associated with the reintroduction, we have determined that the preferred alternative is to release the whooping cranes in Wisconsin.

In accordance with the criteria in Executive Order 12866, this final rule to designate NEP status for the whooping crane reintroduction into the eastern United States is not a significant regulatory action subject to Office of Management and Budget review. This rule will not have an annual economic effect of $100 million and will not have an adverse effect upon any economic sector, productivity, competition, jobs, the environment, or other units of government. Therefore, a cost-benefit economic analysis is not required.

Lands where releases would be conducted include Necedah and Horicon National Wildlife Refuges, and the Crex Meadows State Wildlife Area in Wisconsin. The wintering site in Florida is primarily Chassahowitzka National Wildlife Refuge and may include the adjacent St. Martin's Marsh Aquatic Preserve and Crystal River State Buffer Preserve. Following release, birds from the NEP are likely to utilize private lands adjacent to both the release areas and the wintering site. Because of the substantial regulatory relief provided by NEP designations, we do not believe the reintroduction of whooping cranes will conflict with existing human activities or hinder public or private use of lands within the NEP area. Likewise, no governments, individuals, or corporations will be required to manage specifically for reintroduced whooping cranes.

This rule will not create inconsistencies with other agency's actions or otherwise interfere with an action taken or planned by another agency. Because of the substantial regulatory relief provided by NEP designations, we do not believe the presence of whooping cranes will obligate any agency or government to take an action which would conflict with their existing authorities or activities within the NEP area. This rule will allow any agency or citizen to conduct otherwise legal activities under provisions of the Act.

This rule will not materially affect entitlements, grants, user fees, loan programs or the rights or obligations of their recipients. This rule will not raise novel legal or policy issues. We have previously designated an experimental population of whooping cranes in Florida and for other species at numerous locations throughout the nation.

The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq .). The area affected by this rule includes 20 States within the eastern United States. We do not expect this rule to have any significant effect on recreational, agricultural, or development activities within the NEP area. There will be no federally-mandated closures of seasons or areas to hunting or conservation order actions for protection of the NEP. We expect only temporary access restrictions to limited areas in the vicinity of rearing and release facilities at times during the spring/summer rearing period, during migration with ultralight aircraft, or at the wintering site. In the primary release area, these closures are not expected to occur outside of existing, long-established closed areas on Necedah NWR. Any temporarily restricted access to areas will be of the minimum size and duration necessary to provide for protection to the NEP cranes during rearing or release activities, and will be conducted in close coordination with the States. Because any such access restrictions will be of short duration and will not require Federal closure of hunting areas or seasons, we do not expect any significant effect on recreational activities. Because no new or additional economic or regulatory restrictions will be imposed upon States, Federal agencies, or members of the public due to the presence of members of the NEP, this rulemaking is not expected to have any significant adverse impacts to recreation, agriculture, or any development activities. The designation of an NEP in this rule will significantly reduce the regulatory requirements regarding the reintroduction of these whooping cranes, will not create inconsistencies with other agency actions, and will not conflict with existing or proposed human activity, or State, Tribal, or private use of lands within the NEP area.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule will not have an annual effect on the economy of $100 million or more for reasons outlined above. It will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. The rule 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.

The NEP designation will not place any additional requirements on any city, county, or other local municipalities. The NEP designation has been endorsed by all of the States within the NEP area. A Small Government Agency Plan is not required. Because this rulemaking does not require that any action be taken by local or State government or private entities, we have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq. , that this rulemaking will not impose a cost of $100 million or more in any given year on local or State governments or private entities (i.e., it is not a “significant regulatory action”).

In accordance with Executive Order 12630, the rule does not have significant takings implications. We do not expect this rule to have a potential takings implication under Executive Order 12630 because it would exempt individuals or corporations from prosecution for take that is accidental and incidental to an otherwise lawful activity. In addition, private entities would also be exempt from any restrictions imposed by consultation requirements under section 7(a)(2) of the Act, as consultation will not likely be conducted except on National Wildlife Refuges or National Parks. Because of the substantial regulatory relief provided by NEP designations, we do not believe the reintroduction of whooping cranes would conflict with existing human activities or hinder public use of lands within the NEP area. None of the States within the NEP area will be required to manage specifically for reintroduced whooping cranes, and all of those States have endorsed the NEP designation. A takings implication assessment is not required.

In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. This rule will not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. As stated above, designation of this population as nonessential experimental will preclude any additional regulatory burdens on public and private entities within the NEP area. A Federalism assessment is not required.

In accordance with Executive Order 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Executive Order.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951) and E.O. 13175, we have notified the Native American Tribes within the nonessential experimental population area about this proposal. They have been advised through verbal and written contact, including informational mailings from the Service. Information was also sent to the Great Lakes Indian Fish and Wildlife Commission, 1854 Authority, Chippewa Ottawa Resource Authority, and Native American Fish and Wildlife Society. If future activities resulting from this rule may affect Tribal resources, a Plan of Cooperation will be developed with the affected Tribe or Tribes.

This rule contains information collection activity for experimental populations. We have OMB approval for the collection under OMB Control Number 1018-0094. The Service may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

We have prepared an environmental assessment as defined under the authority of the National Environmental Policy Act of 1969. It is available from Service offices identified in the ADDRESSES section.

On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. As this rule is not expected to significantly affect energy supplies, distribution, or use, this action is not a significant energy action and no Statement of Energy Effects is required.

We find good cause under the Administrative Procedure Act (5 U.S.C. 553(d)(3)) to make this rule effective upon publication. The prompt release of currently available captive-reared whooping cranes is necessary because: (1) There is a limited time during which chicks will hatch in the captive whooping crane flock and be available for rearing; (2) the facilities in which the crane chicks are held are not designed to hold the birds for extended periods; and (3) the young cranes become less suitable for wild release if they are held in captivity for too long. If young cranes cannot be transported to Wisconsin by late June or early July 2001 for further stages of rearing and to begin training for the migration process, the reintroduction will likely have to be delayed until next year. Therefore, good cause exists for this rule to be effective immediately upon its publication.

A complete list of all references cited in this final rule is available upon request from the Green Bay Field Office (see ADDRESSES section).

The principal authors of this rule are Joel Trick and Janet Smith, U.S. Fish and Wildlife Service, Green Bay, WI (Phone: 920-465-7440); Tom Stehn, U.S. Fish and Wildlife Service, Austwell, TX (Phone 361-286-3559); and Linda Walker, U.S. Fish and Wildlife Service, Jacksonville, FL (Phone: 904-232-2580).

The reef fish fishery of the Gulf of Mexico is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). The FMP was prepared by the Gulf of Mexico Fishery Management Council and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act by regulations at 50 CFR part 622. Those regulations set the commercial quota for red snapper in the Gulf of Mexico at 4.65 million lb (2.11 million kg) for the current fishing year, January 1 through December 31, 2001. The red snapper commercial fishing season is split into two time periods, the first commencing at noon on February 1 with two-thirds of the annual quota (3.10 million lb (1.41 million kg) available, and the second commencing at noon on October 1 with the remainder of the annual quota available. During the commercial season, the red snapper commercial fishery opens at noon on the first of each month and closes at noon on the 10th of each month, until the applicable commercial quotas are reached.

Under 50 CFR 622.43 (a), NMFS is required to close the commercial fishery for a species or species group when the quota for that species or species group is reached, or is projected to be reached, by filing a notification to that effect in the Federal Register . Based on current statistics, NMFS has determined that the available spring commercial quota of 3.10 million lb (1.41 million kg) for red snapper will be reached when the fishery closes at noon on July 6, 2001. Accordingly, the commercial fishery in the EEZ in the Gulf of Mexico for red snapper will remain closed until noon, local time, on October 1, 2001. The operator of a vessel with a valid reef fish permit having red snapper aboard must have landed and bartered, traded, or sold such red snapper prior to noon, local time, July 6, 2001.

During the closure, the bag and possession limits specified in 50 CFR 622.39 (b) apply to all harvest or possession of red snapper in or from the EEZ in the Gulf of Mexico, and the sale or purchase of red snapper taken from the EEZ is prohibited. In addition, the bag and possession limits for red snapper apply on board a vessel for which a commercial permit for Gulf reef fish has been issued, without regard to where such red snapper were harvested. However, the bag and possession limits for red snapper apply only when the recreational quota for red snapper has not been reached and the bag and possession limit has not been reduced to zero. The prohibition on sale or purchase does not apply to sale or purchase of red snapper that were harvested, landed ashore, and sold prior to noon, local time, July 6, 2001, and were held in cold storage by a dealer or processor.

This action is taken under 50 CFR 622.43 (a) and is exempt from review under Executive Order 12866.

The Atlantic shark fishery is managed under the Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (HMS FMP), and its implementing regulations found at 50 CFR part 635 issued under authority of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq. ).

Since 1997, NMFS has been involved in litigation with Southern Offshore Fishing Association (SOFA) and other commercial fishermen and dealers regarding the commercial regulations for the Atlantic shark fishery. NMFS and plaintiffs reached settlement in this litigation, and the United States District Court for the Middle District of Florida Tampa Division stipulated to this agreement in December 2000. On March 6, 2001, NMFS published an emergency rule implementing the 1997 LCS and SCS quotas and catch accounting/monitoring procedures consistent with the settlement agreement (66 FR 13441).

Additionally, the settlement agreement required NMFS to obtain an independent peer review of the 1998 LCS stock assessment. As of June 19, 2001, the reviews were not complete. Thus, based on the terms of the settlement agreement, the annual quotas for LCS and SCS will remain at the 1997 levels of 1,285 metric tons (mt) dressed weight (dw) and 1,760 mt dw, respectively. Also, per the settlement agreement, NMFS has implemented the 1999 HMS FMP annual quota levels for pelagic, blue, and porbeagle sharks of 488 mt dw, 273 mt dw, and 92 mt dw, respectively (66 FR 55; January 2, 2001).

Of the 642.5 mt dw available for the first semiannual LCS season, 587.5 mt dw was taken. NMFS is adding the remaining 55 mt dw to the available quota for the second semiannual 2001 fishing season. Although the settlement agreement did not include a specific procedure for a quota underharvest, such carryover to the next semiannual season was stipulated for any overharvest. Thus, this carryover of underharvest is consistent with the procedure outlined in the December 2000 settlement agreement entered into by NMFS and plaintiffs from the fishing industry. As such, the LCS quota for the 2001 second semiannual season is 697 mt dw. The SCS second semiannual quota for 2001 will remain at the 1997 level of 880 mt dw. The second 2001 semiannual quotas for pelagic, blue, and porbeagle sharks will be 244 mt dw, 136.5 mt dw, and 46 mt dw, respectively.

The prohibited species provisions will be enforced. A list of prohibited shark species can be found in Table 1 of Appendix A to part 635, subpart D. The limited access provisions for commercial harvests still apply, including trip limits for directed and incidental shark permit holders.

The second semiannual fishing season of the 2001 fishing year for the commercial fishery for LCS in the western north Atlantic Ocean, including the Gulf of Mexico and the Caribbean Sea, will open July 1, 2001. To estimate the closure dates of the LCS, NMFS used the average daily catch rates for each species group from the second seasons from the years 1998, 1999, and 2000 while also considering the reporting dates of permitted shark dealers. The 1998 and 2000 data indicate that over 60 percent of the available quota could be taken by the end of July and 70 to 90 percent of the available quota could be taken within the first 2 weeks of August. In 1999, the second semiannual season was closed at the end of July and re-opened in September. Thus, 1999 catch rate data for August is not available and NMFS does not feel it appropriate at this time to use the catch rates from September and October to estimate a possible closure in August. July 1999 data indicate that only 30 percent of the available quota could be taken. However, NMFS was implementing limited access for the Atlantic shark and swordfish fisheries in July of 1999 and many fishermen, who would normally fish, may not have had the correct permits at that time. Accordingly, the Acting Assistant Administrator for Fisheries (AA) has determined that the LCS quota for the second 2001 semiannual season will likely be attained by August 31, 2001. Thus, the LCS fishery will close August 31, 2001, at 11:30 p.m. local time.

During a closure, retention of, fishing for, possessing or selling LCS are prohibited for persons fishing aboard vessels issued a limited access permit under 50 CFR 635.4. The sale, purchase, trade, or barter of carcasses and/or fins of LCS harvested by a person aboard a vessel that has been issued a permit under 50 CFR 635.4 are prohibited, except for those that were harvested, offloaded, and sold, traded, or bartered prior to the closure and were held in storage by a dealer or processor.

When quotas are projected to be reached for the SCS, pelagic, blue, or porbeagle shark fisheries, the AA will file notification of closure at the Office of the Federal Register at least 14 days before the effective date.

Those vessels that have not been issued a limited access permit under 50 CFR 635.4 may not sell sharks and are subject to the recreational size limits and retention limits specified at 50 CFR 635.20(e) and 635.22(c), respectively. The recreational fishery is not affected by any closure in the commercial fishery.

This action is taken under 50 CFR part 635 and is exempt from review under Executive Order 12866.