In Title 7 of the Code of Federal Regulations, parts 300 to 399, revised as of January 1, 2001, appearing on page 34 and 35, § 301.50-3(d) is removed. The text was removed by an amendment published at 64 FR 387, January 5, 1999.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to Fokker Model F.28 Mark 1000, 2000, 3000, and 4000 series airplanes was published in the Federal Register on June 27, 2001, (66 FR 34132). That action proposed to require a one-time eddy current inspection for cracks of the fuselage butt joint which is forward of the emergency exits on the left- and right-hand sides of the airplane at the level of stringers 27/48. That action also proposed to require repair of any cracks detected.

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

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

The FAA estimates that 23 Model F.28 Mark 1000, 2000, 3000, and 4000 series airplanes of U.S. registry will be affected by this AD, that it will take approximately 2 work hours per airplane to accomplish the required eddy current inspection, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $2,760, or $120 per airplane.

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to all Fokker Model F27 Mark 100, 200, 300, 400, 500, 600, and 700 series airplanes was published in the Federal Register on June 27, 2001 (66 FR 34134). That action proposed to require a one-time inspection for correct installation of the left- and right-hand fuel differential pressure (FDP) switches and for correct connection of the pressure sensing lines to the switches, and corrective action, if necessary.

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

The commenter states that the Dutch airworthiness directive is not cited in the proposed rule, and asks that it be included in the final rule. The FAA agrees with the commenter in that the note citing the Dutch airworthiness directive was inadvertently omitted from the proposed rule. We have added the note to this final rule accordingly.

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

The FAA estimates that 44 airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish the required one-time inspection, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $2,640, or $60 per airplane.

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

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

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

On May 15, 2000, the FAA issued AD 2000-10-12, amendment 39-11736 (65 FR 33444, May 24, 2000), applicable to certain Boeing Model 747-400 series airplanes, to require repetitive inspections to detect damage or deflection of the crew rest heat exchanger, and follow-on actions, if necessary. That action was prompted by reports of cracking and buckling of the front edge of the crew rest heat exchanger on several airplanes. The requirements of that AD are intended to detect and correct damage or deflection of the crew rest heat exchanger, which could result in jamming of the rudder or elevator control cables, and consequent reduced controllability of the airplane.

In the preamble to AD 2000-10-12, the FAA indicated that the actions required by that AD were considered “interim action” and that further rulemaking action was being considered. We now have determined that further rulemaking action is indeed necessary, and this AD follows from that determination.

Since the issuance of AD 2000-10-12, we have reviewed and approved Boeing Alert Service Bulletin 747-21A2412, Revision 2, dated November 30, 2000. (AD 2000-10-12 referred to the original issue of Boeing Alert Service Bulletin 747-21A2412, dated January 20, 2000, as the appropriate source of service information for the required actions.) Among other changes, Revision 2 of the service bulletin adds a new one-time inspection to determine the part number and shop code of the shell assembly of the crew rest heat exchanger. The service bulletin also describes procedures for certain follow-on actions if the shell has a certain part number and shop code, or if the shop code cannot be determined. The follow-on actions involve removing the shell assembly of the heat exchanger; measuring the thickness of the wall of the shell adjacent to the forward flange; remarking the part, if necessary; and replacing the shell assembly of the crew rest heat exchanger with a new shell assembly, if necessary. Accomplishment of the new inspection and applicable follow-on actions eliminates the need for the currently required repetitive inspections for deflection or damage of the crew rest heat exchanger. Accomplishment of the actions specified in Revision 2 of the service bulletin is intended to adequately address the identified unsafe condition.

Additionally, paragraph (b) of AD 2000-10-12 contains a requirement to measure the thickness of the material of discrepant heat exchanger and send certain discrepant heat exchangers and inspection results to the airplane manufacturer. Because the airplane manufacturer has issued the new service bulletin discussed above, which contains a terminating action for the repetitive inspections required previously, we find that it is no longer necessary to require the measurement and return of discrepant heat exchangers. Paragraph (b) has been revised accordingly, and Note 3 of the existing AD, which contains information related to the return of damaged heat exchangers, has not been included in this AD.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, this AD supersedes AD 2000-10-12 to continue to require repetitive inspections to detect damage or deflection of the crew rest heat exchanger, and follow-on actions, if necessary. This AD adds a new requirement for a one-time inspection to determine the part number and shop code of the shell of the crew rest heat exchanger, and follow-on actions, if necessary, which terminate the currently required repetitive inspections. The actions are required to be accomplished in accordance with the service bulletins described previously, except as discussed below.

This AD differs from the service bulletin in that the service bulletin specifies that the new inspection to determine the part number and shop code of the shell of the crew rest heat exchanger be accomplished at “the next heavy maintenance visit.” We find that such a compliance time will not necessarily ensure that the inspection will be done in a timely manner. In developing an appropriate compliance time for the new inspection required by this AD, we considered not only the manufacturer's recommendation, but the degree of urgency associated with addressing the subject unsafe condition, the average utilization of the affected fleet, and the time necessary to perform the new inspection (less than one hour). In light of all of these factors, we find an 18-month compliance time for completing the required inspection to be warranted, in that it represents an appropriate interval of time allowable for affected airplanes to continue to operate without compromising safety. We find that this compliance time will also be sufficient to allow the inspections to be conducted during a regularly scheduled maintenance visit for the majority of the affected fleet.

None of the Model 747-400 series airplanes affected by this action are on the U.S. Register. All airplanes included in the applicability of this rule currently are operated by non-U.S. operators under foreign registry; therefore, they are not directly affected by this AD action. However, the FAA considers that this rule is necessary to ensure that the unsafe condition is addressed in the event that any of these subject airplanes are imported and placed on the U.S. Register in the future.

Should an affected airplane be imported and placed on the U.S. Register in the future, it would take approximately 1 work hour to accomplish the inspection currently required by AD 2000-10-12, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this inspection would be $60 per airplane, per inspection cycle.

Should an affected airplane be imported and placed on the U.S. Register in the future, it would take approximately 1 work hour to accomplish the new inspection required by this AD, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the new required inspection would be $60 per airplane.

Since this AD action does not affect any airplane that is currently on the U.S. register, it has no adverse economic impact and imposes no additional burden on any person. Therefore, prior notice and public procedures hereon are unnecessary and the amendment may be made effective in less than 30 days after publication in the Federal Register.

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

Submit comments using the following format:

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-119-AD.” The postcard will be date-stamped and returned to the commenter.

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

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

The FAA has received reports of flap extension/retraction system failures on Raytheon Model 1900D airplanes. The failures occurred when the inner flexible shaft ends separated or disengaged. One of these failures resulted in an asymmetric flap condition when the flap safety switch failed to function properly.

The flap flexible shafts are designed to carry more torque in one direction than the other. If installed on the wrong side of the airplane, the excessive torque load leads to these failures. Raytheon informed us that the flap flexible shafts may have been installed on the wrong side of the airplane on certain Beech Models 1900, 1900C, and 1900D airplanes.

Flap extension/retraction failures caused by incorrectly configured flap flexible shaft assemblies could result in loss of flap function or an asymmetric flap condition during flight if the flap safety switch fails to function properly.

The FAA issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain Raytheon Beech Models 1900, 1900C, and 1900D airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on June 5, 2001 (66 FR 30093). The NPRM proposed to require you to inspect the inner flexible (drive) shaft of all four flap flexible shaft assemblies for the correct diagonal wrap and the correct installation; and replace any flap flexible shaft assembly that has an incorrect diagonal wrap or incorrect installation.

The FAA encouraged interested persons to participate in the making of this amendment. We did not receive any comments on the proposed rule or on our determination of the cost to the public.

After careful review of all available information related to the subject presented above, FAA has determined that air safety and the public interest require the adoption of the rule as proposed except for minor editorial corrections. We determined that these minor corrections:

The FAA estimates that this AD affects 205 airplanes in the U.S. registry.

We estimate the following costs to accomplish the inspection:

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to all Boeing Model 767-300 series airplanes modified by supplemental type certificate SA7019NM-D was published in the Federal Register on June 28, 2001 (66 FR 34377). That action proposed to require modification of the in-flight entertainment (IFE) system to install a switch to remove power from the IFE system and revision of flight crew and cabin crew procedures.

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

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

None of the airplanes affected by this AD are on the U.S. Register. All airplanes included in the applicability of this AD currently are operated by non-U.S. operators under foreign registry; therefore, they are not directly affected by this AD. However, the FAA considers that this AD is necessary to ensure that the unsafe condition is addressed in the event that any of these subject airplanes are imported and placed on the U.S. Register in the future.

Should an affected airplane be imported and placed on the U.S. Register in the future, it will take approximately 40 work hours per airplane to accomplish the required modification, at an average labor rate of $60 per work hour. Required parts will cost approximately $2,740 per airplane. Based on these figures, the cost impact of the required modification would be $5,140 per airplane.

Should an affected airplane be imported and placed on the U.S. Register in the future, it will take approximately 1 work hour per airplane to accomplish the required manual revisions, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the required manual revisions would be $60 per airplane.

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

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

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

FDA has found several errors in the agency's regulations concerning sponsors of approved applications of medicated animal feeds. To correct those errors, FDA is amending 21 CFR 510.600(c)(1) and (c)(2) to remove names and corresponding drug labeler codes for Carnation Co., Illini Feeds, and Tevcon Ind., Inc., because these firms are no longer the holders of any approved NADAs. The agency is also amending the animal drug approval regulations by removing the entry associated with Carnation Co.'s NADA 104-424 in 21 CFR 558.58, which is no longer an approved NADA.

Publication of this document constitutes final action on these changes under the Administrative Procedure Act (5 U.S.C. 553). Notice and public procedure are unnecessary because FDA is merely correcting nonsubstantive errors.

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

This final rule finalizes, without change, the Notice of Proposed Rulemaking (NPRM) published in the Federal Register on October 25, 2000 (65 FR 63822; as corrected at 65 FR 67796), to amend Title 21, Code of Federal Regulations (CFR) § 1313.12 to waive the advance notification requirement for imports of the solvents acetone, 2-Butanone (MEK), and toluene, which are regulated as List II chemicals. This rule also finalizes a number of technical corrections to the regulations.

The intent of the chemical control provisions of the Controlled Substances Act (CSA) is to curb the diversion of regulated chemicals to the illicit manufacture of controlled substances. This diversion can occur through distribution, importation and exportation of these chemicals. One of the principal components of chemical control with respect to imports and exports is the requirement that advance notification be provided to DEA prior to an importation or exportation of a listed chemical (21 U.S.C. 971). This advance notification allows DEA an opportunity to review the transaction and determine whether it might result in diversion of the chemical to the illicit manufacture of a controlled substance. The advance notification requirement is conditioned by the provision that DEA can waive the requirement for imports or exports of listed chemicals for which the Administrator determines that such advance notification is not necessary for effective chemical diversion control (21 U.S.C. 971(e)(3), 21 CFR 1313.12(c)(2) and 21 CFR 1313.21(c)(2)).

DEA has determined that the advance notification requirement for acetone, 2-Butanone, and toluene is not necessary for effective chemical diversion control and, therefore, is waiving this requirement for these three List II chemicals.

Acetone, 2-Butanone (MEK) and toluene are widely used as industrial chemicals in the United States. The principal concern for DEA in regard to these solvents is their use in the illicit manufacture of cocaine. Cocaine is manufactured overseas; at this time, it is not manufactured in the United States. Diversion of these solvents for illegal manufacture of controlled substances has not been identified as a significant problem in the United States.

DEA received no comments to the NPRM.

With waiver of the advance notification requirement, importers of acetone, 2-Butanone (MEK) and toluene will not be required to submit individual DEA Form 486s in advance of each importation. Instead, importers will submit summary quarterly reports of all import transactions as described in 21 CFR 1313.12(e) pursuant to 21 U.S.C. 971(e)(3).

This final rule reduces the paperwork burden for the regulated industry. Approximately two thirds of all 15-day advance notifications of importation (on average 2000 advance notifications annually) are for the solvents acetone, 2-Butanone (MEK), and toluene, equating to an initial paperwork burden reduction of 420 hours. In lieu of this paperwork requirement, DEA is requiring that importers of acetone, 2-Butanone (MEK) and toluene complete a quarterly summary report of all transactions. This quarterly summary report is estimated to impose a regulatory burden of 200 hours per year. Therefore, this change creates a net reduction of 220 annual paperwork burden hours for the regulated industry.

DEA also proposed a number of technical corrections to the regulations, which are finalized in this rulemaking.

In 21 CFR 1313.12(b) and 21 CFR 1313.21(b) the reference to the “Drug Control Section” is being changed to the “Chemical Control Section” to reflect organizational changes within DEA. In 21 CFR 1313.21(e), the text noting that no DEA Form 486 is required for exportations subject to 21 CFR 1313.21(c)(2) was inadvertently omitted. This text has been reinserted. Further, an error occurred in 21 CFR 1313.21(e) relating to exports where the word “importation”, rather than the word “exportation”, was inadvertently used in the sentence: “The report shall contain the following information regarding each individual importation:”. The word “exportation” is being substituted to correct this error.

The Deputy Assistant Administrator hereby certifies that this rulemaking has been drafted in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation, and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities. Waiving the 15-day advance notification requirement for imports of acetone, 2-Butanone, and toluene will ease the regulatory burden for the regulated industry.

The Deputy Assistant Administrator further certifies that this rulemaking has been drafted in accordance with the principles in Executive Order 12866 Section 1(b). DEA has determined that this is not a significant regulatory action. This rulemaking will ease regulatory burdens for the regulated industry. Therefore, this action has not been reviewed by the Office of Management and Budget.

This regulation meets the applicable standards set forth in Sections 3(a) and 3(b)(2) of Executive Order 12988.

This rulemaking does not preempt or modify any provision of state law; nor does it impose enforcement responsibilities on any state; nor does it diminish the power of any state to enforce its own laws. Accordingly, this rulemaking does not have federalism implications warranting the application of Executive Order 13132.

This rulemaking waives the advance notification requirement for acetone, 2-Butanone and toluene. This change creates a net reduction of 220 annual paperwork burden hours for the regulated industry.

This rule will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by Section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

The Drug Enforcement Administration makes every effort to write clearly. If you have suggestions as to how to improve the clarity of this regulation, call or write Patricia M. Good, Chief, Liaison and Policy Section, Office of Diversion Control, Drug Enforcement Administration, Washington, DC 20537, telephone (202) 307-7297.

A notice of proposed rulemaking (NPRM) was not published for this regulation. Under 5 U.S.C. 553(b)(B) and 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for not publishing an NPRM and for making this rule effective less than 30 days after publication in the Federal Register. The Coast Guard received the permit request for special local regulations on August 1, 2001. We were notified of the need for special local regulations with insufficient time to publish an NPRM, allow for comments, and publish a temporary final rule prior to the event on September 22, 2001.

On September 22, 2001, Laacke and Joys Inc. will sponsor the Milwaukee River Challenge crew boat races from 12 m. (noon) until 6 p.m. on the waters of the Milwaukee River, Milwaukee, Wisconsin. A fleet of spectator vessels is expected to gather near the event site to view the crew boat races. Normal river traffic will be shut down for a period of six hours between the Chicago Street and Humboldt Avenue bridges. Except for participants in the Milwaukee River Challenge crew boat races and persons or vessels authorized by the Patrol Commander, no person or vessel may enter or remain in the regulated area.

The regulated area for the boat races will encompass all waters of the Milwaukee River and the adjacent shoreline between the Chicago Street and Humboldt Avenue bridges.

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).

We expect the economic impact of this temporary final rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary.

Although this regulation prevents traffic from transiting a portion of the Milwaukee River during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners, marine information broadcasts, and area newspapers so mariners can adjust their plans accordingly.

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, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in the vicinity of the Milwaukee River, Milwaukee, Wisconsin from 12 m. (noon) until 6 p.m. (local) on September 22, 2001.

The effect of this regulation will not be significant because of the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners, marine information broadcasts, and area newspapers so mariners can adjust their plans accordingly.

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 U.S. Coast Guard 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).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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.

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.

We have considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph 34(h) 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.

2. A new temporary § 100.35-T09-996 is added to read as follows:

The St. Claude Avenue bascule bridge across the Inner Harbor Navigation Canal, mile 0.5 (GIWW mile 6.2 East of Harvey Lock) in New Orleans, Orleans Parish, Louisiana, has a vertical clearance of 1 foot above high water in the closed-to-navigation position and unlimited in the open-to-navigation position. Navigation on the waterway consists mainly of tugs with tows and some ships. The bridge owner requested a temporary deviation from the normal operation of the drawbridge in order to accommodate repair work on the bridge. These repairs are necessary for the continued operation of the bridge.

This deviation allows the draw of the St. Claude Avenue bascule bridge across the Inner Harbor Navigation Canal, mile 0.5 (GIWW mile 6.2 East of Harvey Lock), to remain closed to navigation from 7 a.m. until 5 p.m. on Saturday, September 22, 2001.

The Union Pacific Railroad vertical lift span bridge across the Gulf Intracoastal Waterway, Morgan City to Port Allen (Alternate Route), mile 56.0, on the Port Allen Canal near Morley, West Baton Rouge Parish, Louisiana, has a vertical clearance of 7 feet above high water in the closed-to-navigation position and 73 feet above mean high water in the open-to-navigation position. Navigation on the waterway consists mainly of tugs with tows. The Union Pacific Railroad requested a temporary deviation from the normal operation of the drawbridge in order to accommodate the maintenance and repair work on the bridge. These repairs are necessary for the continued operation of the bridge.

This deviation allows the draw of the Union Pacific Railroad vertical lift span drawbridge across the Gulf Intracoastal Waterway, Morgan City to Port Allen (Alternate Route), mile 56.0, on the Port Allen Canal, to remain closed to navigation from 7 a.m. until 7 p.m. on Monday, September 10, 2001 and from 7 a.m. until 7 p.m. on Wednesday, September 12, 2001.

On May 9, 2001, we published a notice of proposed rulemaking (NPRM) entitled Drawbridge Operation Regulations; West Bay, Massachusetts, in the Federal Register (66 FR 23638). We received no comment letters in response to the notice of proposed rulemaking. No public hearing was requested and none was held.

The West Bay Bridge, mile 1.2, across West Bay has a vertical clearance of 15 feet at mean high water and 17 feet at mean low water.

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

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

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

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

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

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

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

The bridge owner, the Town of Barnstable, asked the Coast Guard to change the drawbridge operation regulations to allow the bridge to open on signal, from April 1 through April 30 if at least a twenty-four hours advance notice is given by calling the number posted at the bridge.

The bridge was authorized to remain closed for repairs in April for the last two years. The number of bridge openings in April for the last five years are as follows:

In return for the advance notice requirement at all times in April, the bridge owner would crew the bridge two to three hours later at night during the boating season.

The bridge owner voluntarily expanded on signal service during the summer of 1999 and 2000, by extending the operating hours at the bridge at night. This was possible as a result of the cost savings derived from not crewing the bridge, 8 a.m. to 4 p.m., during the month of April while it was closed for repairs.

The bridge owner held a town meeting on January 25, 2001, in Osterville, Massachusetts, to receive verbal and written comment regarding this proposed change to the drawbridge operation regulations. The bridge has essentially operated for the past two years in accordance with the operating hours included in this rule. The proposed changes were fully supported by the local attendees at the special town meeting. Attendees at the meeting included the local marina operators, mariners and citizens of Osterville. Mariners can reach open water when the West Bay Bridge is not crewed by navigating through Cotuit.

The Coast Guard received no comment letters. No changes will be made to this final rule.

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 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 conclusion is based on the fact that the bridge will open at all times for vessel traffic.

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. “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. This conclusion is based on the fact that the bridge will open at all times for vessel traffic.

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 E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights

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

We have analyzed this rule under E.O. 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 (32)(e) of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation because promulgation of changes to drawbridge regulations have been found to not have a significant effect on the environment. A written “Categorical Exclusion Determination” is not required for this final rule.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have 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.

The Union Pacific Railroad vertical lift span bridge across the Atchafalaya River, mile 107.4, near Melville, St. Landry and Point Coupee Parishes, Louisiana, has a vertical clearance of 4 feet above high water in the closed-to-navigation position and 54 feet above mean high water in the open-to-navigation position. Navigation on the waterway consists mainly of tugs with tows. The Union Pacific Railroad requested a temporary deviation from the normal operation of the drawbridge in order to accommodate the maintenance and repair work on the bridge. These repairs are necessary for the continued operation of the bridge.

This deviation allows the draw of the Union Pacific Railroad vertical lift span drawbridge across the Atchafalaya River, mile 107.4, to remain closed to navigation from 7 a.m. until 7 p.m. on Monday, October 15, 2001 and from 7 a.m. until 7 p.m. on Wednesday, October 17, 2001.

Pursuant to sections 182(b)(2) and 182(f) of the Clean Air Act (CAA), the Commonwealth of Pennsylvania (the Commonwealth or Pennsylvania) is required to establish and implement RACT for all major VOC and NOX sources. The major source size is determined by its location, the classification of that area and whether it is located in the ozone transport region (OTR). Under section 184 of the CAA, RACT as specified in sections 182(b)(2) and 182(f) applies throughout the OTR. The entire Commonwealth is located within the OTR. Therefore, RACT is applicable statewide in Pennsylvania.

State implementation plan revisions imposing reasonably available control technology (RACT) for three classes of VOC sources are required under section 182(b)(2). The categories are: (1) All sources covered by a Control Technique Guideline (CTG) document issued between November 15, 1990 and the date of attainment; (2) All sources covered by a CTG issued prior to November 15, 1990; (3) All other major non-CTG rules were due by November 15, 1992. The Pennsylvania SIP has approved RACT regulations and requirements for all sources and source categories covered by the CTGs.

On February 4, 1994, PADEP submitted a revision to its SIP to require major sources of NOX and additional major sources of VOC emissions (not covered by a CTG) to implement RACT. The February 4, 1994 submittal was amended on May 3, 1994 to correct and clarify certain presumptive NOX RACT requirements. In the Philadelphia area, a major source of VOC is defined as one having the potential to emit 25 tons per year (tpy) or more, and a major source of NOX is also defined as one having the potential to emit 25 tpy or more. Pennsylvania's RACT regulations require sources, in the Philadelphia area, that have the potential to emit 25 tpy or more of VOC and sources which have the potential to emit 25 tpy or more of NOX to comply with RACT by May 31, 1995. The regulations contain technology-based or operational “presumptive RACT emission limitations” for certain major NOX sources. For other major NOX sources, and all major non-CTG VOC sources (not otherwise already subject to RACT under the Pennsylvania SIP), the regulations contain a “generic” RACT provision. A generic RACT regulation is one that does not, itself, specifically define RACT for a source or source categories but instead allows for case-by-case RACT determinations. The generic provisions of Pennsylvania's regulations allow for PADEP to make case-by-case RACT determinations that are then to be submitted to EPA as revisions to the Pennsylvania SIP.

On March 23, 1998 EPA granted conditional limited approval to the Commonwealth's generic VOC and NOX RACT regulations (63 FR 13789). In that action, EPA stated that the conditions of its approval would be satisfied once the Commonwealth either (1) certifies that it has submitted case-by-case RACT proposals for all sources subject to the RACT requirements currently known to PADEP; or (2) demonstrates that the emissions from any remaining subject sources represent a de minimis level of emissions as defined in the March 23, 1998 rulemaking. On April 22, 1999, PADEP made the required submittal to EPA certifying that it had met the terms and conditions imposed by EPA in its March 23, 1998 conditional limited approval of its VOC and NOX RACT regulations by submitting 485 case-by-case VOC/NOX RACT determinations as SIP revisions and making the demonstration described as condition 2, above. EPA determined that Pennsylvania's April 22, 1999 submittal satisfied the conditions imposed in its conditional limited approval published on March 23, 1998. On May 3, 2001 (66 FR 22123), EPA published a rulemaking action removing the conditional status of its approval of the Commonwealth's generic VOC and NOX RACT regulations on a statewide basis. The regulation currently retains its limited approval status in the Philadelphia area. Once EPA has approved the case-by-case RACT determinations submitted by PADEP to satisfy the conditional approval for subject sources located in Bucks, Chester, Delaware, Montgomery and Philadelphia Counties; the limited approval of Pennsylvania's generic VOC and NOX RACT regulations shall convert to a full approval for the Philadelphia area.

It must be noted that the Commonwealth has adopted and is implementing additional “post RACT requirements” to reduce seasonal NOX emissions in the form of a NOX cap and trade regulation, 25 Pa Code Chapters 121 and 123, based upon a model rule developed by the States in the OTR. That rule's compliance date is May 1999. That regulation was approved as a SIP revision on June 6, 2000 (65 FR 35842). Pennsylvania has also adopted regulations to satisfy Phase I of the NOX SIP call and submitted those regulations to EPA for SIP approval. Pennsylvania's SIP revision to address the requirements of the NOX SIP Call Phase I consists of the adoption of Chapter 145—Interstate Pollution Transport Reduction and amendments to Chapter 123—Standards for Contaminants. On May 29, 2001 (66 FR 29064), EPA proposed approval of the Commonwealth's NOX SIP call regulations. On August 10, 2001, EPA signed its final rule approving the Commonwealth's NOX SIP call regulations as a SIP revision and expects it to be published in the Federal Register in the near future. Federal approval of a case-by-case RACT determination for a major source of NOX in no way relieves that source from any applicable requirements found in 25 PA Code Chapters 121, 123 and 145.

On December 8, 1995, March 21, 1996, January 21, 1997, July 24, 1998, April 20, 1999, March 23, 2001 (two separate submissions), and July 5, 2001; PADEP submitted revisions to the Pennsylvania SIP to establish and impose RACT for several major sources of VOC and/or NOX. This rulemaking pertains to fourteen (14) of those sources. The remaining sources are or have been the subject of separate rulemakings. These sources are all located in the Philadelphia area. The table below identifies the sources and the individual plan approvals (PAs) or operating permits (OPs) in which RACT has been imposed. A summary of the VOC and NOX RACT determinations for each source follows the table.

Perkasie Industries Corporation (Perkasie), located in Bucks County, Pennsylvania, manufactures fluorescent lighting fixtures. Perkasie is a major source of VOC. The manufacturing installations and processes at this source are subject to category specific SIP-approved RACT requirements adopted by the Commonwealth in accordance with the applicable CTGs. The clean -up operations require a case-by-case RACT determination. The PADEP issued OP-09-0011 to Perkasie on August 14, 1996 to establish RACT. In OP-09-0011, Pennsylvania imposed work practice standards and limited the VOC emissions from the clean-up operations to less than 3 pounds per hour, 15 pounds per day, and 2.7 tons per year. Under OP-09-0011, Perkasie is required to use EPA approved test methods to determine the VOC properties of all coatings as described in 25 Pa Code 139, and to meet the recordkeeping and reporting requirements of 25 Pa Code 129.95.

Quaker Chemical Corporation (Quaker), located in Montgomery County, Pennsylvania, is a batch process specialty chemicals manufacturing facility. Quaker manufactures approximately 400 different intermediate and final proprietary products through blending and/or reacting of raw materials in process vessels. Quaker is a major source of NOX and VOC. The majority of the manufacturing installations and processes at this source are subject to category specific SIP-approved VOC RACT requirements adopted by the Commonwealth in accordance with the applicable CTGs and to SIP-approved presumptive RACT requirements to control NOX. Other small installations and processes require a case-by-case RACT determination. Pennsylvania issued permit OP-46-0071 to Quaker to impose RACT. The equipment which has the potential to emit small amounts of VOCs includes a pilot plant, laboratory hoods, Building #4 material storage vessels, fuel oil storage tanks, the B and C tank farms, the sparkler filter mixing system, and combustion units. OP-46-0071 requires that Quaker keep the following information for these sources: (1) The throughput or usage of each chemical processed, (2) the VOC contents of the chemicals and their Material Safety Data Sheets (MSDS), (3) the quantity of coatings applied through the spray booth, the composition of those coatings and their MSDS, and (4) any other data or records required to conform to 25 Pa. Code 129.95(e). The NOX emitting units covered by OP-46-0071 include Boilers House Boilers No.1 and 2, each rated at 29.4 MMBtu/hr firing natural gas and NO. 6 fuel oil; several small combustion units, rated from 5MMBtu/hr to 0.3 MMBtu/hr, which fire natural gas only; the Administration Building Generator, rated at 1.4 MMBtu/hr firing natural gas; and the Fire Pump with a rated capacity of 150 hp firing diesel. OP-46-0071 requires that Boiler House Boilers No. 1 and 2 be maintained as follows: (1) An annual adjustment must be performed including inspection, adjustment, cleaning or replacement of the fuel burning equipment (the burners and all moving parts) necessary for operation in accordance with manufacturer's specifications, (2) an inspection must be performed of the flame pattern or characteristics and adjustments made necessary to minimize total emissions of NOX, (3) an inspection must be performed of the air-to-fuel ratio control system and adjustments made to ensure the proper calibration and operation as specified by the manufacturer. Quaker must keep a permanent log book of the maintenance procedures performed including: (1) The date of the procedure, (2) the name of the service company and technicians, (3) the final operating rate or load, (4) the final NOX and carbon monoxide emission rates, and (5) the final excess oxygen. Fuel records must be maintained for fuel used in these boilers including: (1) certification from the supplier of the type of fuel and its nitrogen content, and (2) identification of the sampling method and sampling protocol. The operation of the Administration Building Generator and the fire pump must not exceed 500hrs/year each. The company must operate and maintain all these units in accordance with the manufacturer's specifications and good air pollution control practices.

Rohm and Haas, located in Bucks County, Pennsylvania is a diverse chemical manufacturing facility with a variety of continuous and batch type processes. It is a major source of NOX and VOC. The majority of the manufacturing installations and processes at this source are subject to category specific SIP-approved VOC RACT requirements adopted by the Commonwealth in accordance with the applicable CTGs and to SIP-approved presumptive RACT requirements to control NOX. Other installations and processes require a case-by-case RACT determination. The PADEP issued Rohm and Haas OP-09-0015 to impose RACT. The company's VOC and NOX emission sources are located in the following six areas: Emulsions Area, AtoHaas Area, Polymers Area, Plastics Additives Area, Facilities Area, and Bristol Research Park. The units or processes in these areas include, but are not limited to: polymerization reactors, monomer emulsion tanks, additive tanks, mix tanks, storage tanks, wastewater collection tanks, blend tanks, drain tanks, transfer piping, whitewater pits, pelletizers, kettles, inhibitor mix tanks, a cold methyl methacrylate transfer station, distillation vacuum jets, tank truck loading, railcar loading, and bulk loading operations. Pennsylvania identified and determined RACT for these numerous units and/or processes. Pennsylvania specified that RACT for VOC emitting units or processes which already vent to existing scrubbers or incinerators is continued use of the scrubbers or incinerators. Pennsylvania also required the Company to vent additional units or processes to the existing scrubbers or incinerators, and specified that RACT for these units or processes also consists of use of the scrubbers or incinerators. For the fugitive VOC emissions, Pennsylvania specified that RACT consists of use of good operating practices and a visual leak detection and repair program. Pennsylvania established short term and annual VOC limits on the combined equipment and/or processes in each area, and also on the numerous individual units or processes. Pennsylvania identified four boilers located in the Facilities Area as the most significant sources of NOX emissions. Pennsylvania specified that RACT for two of the boilers is use of low NOX burners and that the other two boilers are to be operated only as emergency standby units. OP-09-0015 imposes a NOX emission limit of 0.47 lbs of NOX/MMBtu on all four boilers. OP-09-0015 imposes extensive testing and recordkeeping requirements accordance with the applicable SIP-approved regulations as necessary to determine compliance. It imposes extensive, specific conditions for the monitoring of the operational parameters of the process and air pollution control equipment at the facility.

Rohm and Haas also has a plant located in Philadelphia, Pennsylvania which manufactures chemical products used for industrial and water treatment operations and for pest control. The facility is a major source of NOX and VOC. The majority of the manufacturing installations and processes at this source are subject to category specific SIP-approved VOC RACT requirements adopted by the Commonwealth in accordance with the applicable CTGs and to SIP-approved presumptive RACT requirements to control NOX. Other installations and processes require a case-by-case RACT determination. The Philadelphia Air Management Services (AMS) issued Rohm and Haas PA-51-1531 to establish RACT. The PADEP submitted PA-51-1531 to EPA as a SIP revision on behalf of the AMS. The facility has a large variety of units or processes that emit VOC. The units or processes which are the most significant sources of VOC include the Building #21, #R-12, #26, #85, #R-11, #80, and #34 vents, the vacuum distillation vent from the cation bead production process, the Semiworks Kathon area vents, the consolidated Goal process, and fugitive leaks. There are emission controls in place for many of these sources including consolidated Goal process scrubbers #U-526, #U-585, #U-588, and #U-594, the #R-11 Wyssmont scrubber, the Building #80 Amines scrubber, the Building #85 methanol wash scrubber, the Building #34 afterburner, the MMA Tank Car Conservation Vent, and a non-contact chilled water condenser. PA-51-1531 requires the use of this control equipment as RACT. PA-51-1531 specifies the following VOC RACT emissions limits:

The PA also requires the Company to implement a visual leak detection and repair (LDAR) program for fugitive emissions from the Goal production area and for fugitive emissions from transfer piping in the Building #85 separations area. Under the LDAR monitoring of all components will be conducted on a quarterly basis. PA-51-1531 requires Rohm and Haas to submit a quarterly Fugitive Emissions Monitoring Report which includes (1) the number of leaks by type of equipment occurring within each process unit during the reporting period, (2) the number of leaks that could not be repaired within 15 days, (3) the reason for unsuccessful or delayed repair beyond 15 days, (4) the percent leak by equipment type within each process unit and for the total covered processes, (5) a list of all process units not monitored during the quarter because the process was not in operation for the whole quarter, (6) the lists of actual components found leaking in each process unit, and (7) a list of the changes that remove change, or add process equipment (except for minor piping changes) to the fugitive emission program. Testing and recordkeeping/reporting requirements have been imposed in accordance with SIP-approved regulations necessary to determine compliance with the RACT requirements. The facility's sources of NOX emissions subject to case-by-case NOX RACT requirements consist of three boilers, each with a heat capacity of 120 MMBtu per hour. Although these boilers have been shutdown, the AMS did determine and impose RACT for them, in the event that Rohm and Haas seeks emission reduction credits from the shutdown. PA 51-1531 specifies that NOX RACT for these three boilers consists of installation of low NOX burners, burner cap trials, and the elimination of waste solvent burning. PA 51-1531 limits the NOX emissions from each boiler to 204 tons per twelve month rolling period and limits the total NOX emissions from all three boilers to 612 tons per rolling twelve month period.

SBF Communication Graphics (SBF), located in Philadelphia, Pennsylvania is a printing facility. It is a major source of VOC. The AMS issued PA-2197 to SBF, and the PADEP submitted it to EPA as a SIP revision. SBF is equipped with 8 non-heatset web offset lithographic printing presses and with 3 heatset web offset lithographic printing presses. These presses produce most of the facility's VOC emissions. The AMS determined that material substitution, i.e., the use of inks, fountain solutions and cleaning solutions with lower VOC contents, constitutes RACT. The PA specifies specific VOC content limitations, by weight, for inks, fountain solutions, and cleaning solutions used at SBF. The PA specifies that the VOC fraction of the ink (minus water), as applied to the substrate, shall not exceed 25% by weight. It requires that the VOC content of the fountain solution, as applied, shall be maintained at or below 5.0 percent by weight, and it shall contain no alcohol. Finally, the PA specifies that cleaning solutions shall either: (1) have a VOC content less than or equal to 30 percent by weight, or (2) have a VOC composite partial pressure, as used, less than or equal to 10 mm Hg at 68 degrees F, or 3) have a total usage which does not exceed 55 gallons over any 12-month rolling period. The PA imposes extensive and specific recordkeeping and reporting requirements necessary to determine compliance with the VOC RACT requirements.

Schlosser Steel, Inc., located in Montgomery County, Pennsylvania supplies structural steel products. The facility includes coating operations which make it a major source of VOC. The majority of the installations and processes at this source are subject to category specific SIP-approved regulations adopted by Pennsylvania in accordance with the applicable CTG(s). For other installations and processes, the PADEP has imposed case-by-case RACT in OP-46-0051. OP-46-0051 limits VOC emissions from parts washing and cleaning operations be less than 3 pounds per hour, 15 pounds per day, and 2.7 tons per year. It requires that the company train its personnel in proper use of equipment which generates VOCs, establish a cleaning solvent accounting system, and conduct a leak inspection and maintenance plan. The PADEP has imposed the testing, recordkeeping and reporting requirements necessary to demonstrate compliance with all applicable SIP-approved RACT regulations including 25 Pa Code 129.52 and 129.91-95.

The Southeastern Pennsylvania Transportation Authority's (SEPTA's) Berridge/Courtland Maintenance Shop, located in Philadelphia, Pennsylvania, repairs and maintains buses. The shop is a major source of VOC. The major of the VOC emitting installations and processes at this source are subject to category specific SIP-approved RACT requirements adopted in accordance with the applicable CTG(s). For other installations and processes, the Philadelphia AMS issued PA-51-4172 to establish RACT. The PADEP submitted PA-51-4172 to EPA has a SIP revision on behalf of AMS. The AMS established RACT on a case-by-case basis for the shop's spray booths, lithographic presses, and the silk screen shop. With respect to spray booth operations, PA-51-4172 specifies that SEPTA must ensure that HVLP type spray guns are utilized in all spraying operations and that spray guns are cleaned with a device that collects spent solvent for proper disposal and minimizes solvent emission during and between cleaning. For the lithographic presses, PA-51-4172 specifies that SEPTA shall use a fountain solution and water mixture with a VOC content no greater than 5% by weight unchilled or 8% by weight chilled to 55 degrees F. PA-51-4172 also specifies that any cleaning solution used for blanket and roller cleaning on a sheet-fed offset lithographic press shall have: (1) A VOC content, as applied, less than or equal to 30 percent by weight, or (2) a VOC composite partial vapor pressure, as used, less than or equal to 10 mm Hg at 68 degrees F. For degreasers not covered by SIP-approved 25 Pa Code 129.63, PA-51-4172 requires that “all containers containing VOC materials shall be covered when not in use; cleaned parts shall be thoroughly drained before removal; a permanent label shall be posted for operating requirements; solvent shall be transferred so as to keep evaporation below 20%; and, waste solvent shall be stored in covered containers. PA-51-4172 imposes the recordkeeping and reporting requirements necessary to determine compliance with all SIP-approved RACT regulations including 25 Pa Code 129.91-129.94.

The Smith-Edwards-Dunlap, Company, located in Philadelphia, Pennsylvania, prints poster boards, letterheads, business cards, etc. The facility is a major source of VOCs. The Philadelphia AMS issued PA-2255 to Smith-Edwards-Dunlap, Company to establish RACT. The PADEP submitted PA-2255 to EPA has a SIP revision on behalf of AMS. The units at the facility which emit VOCs are 13 lithographic printing presses. The PA specifies that VOC RACT for these presses is materials substitution to the use of inks, fountain solutions, and cleaning solutions with lower VOC contents. The permit requires that the VOC fraction of the ink (minus water), as applied to the substrate, shall not exceed 25% by weight. The permit also requires that the VOC fraction of all fountain solutions shall not exceed 20% by volume. Finally, the permit requires that each cleaning solution used in quantities of 55 gallons or more over any rolling twelve month period have a VOC content, as applied, of less than or equal to 30% by weight, or a VOC composite partial vapor pressure, as used, of less than or equal to 10 mm Hg at 68 degrees F. PA-2255 imposes the extensive recordkeeping and reporting requirements necessary to demonstrate compliance with the RACT determinations and 25 Pa Code 129.91 -129.94.

The Philadelphia Water Department's Southwest Water Pollution Control Plant/Biosolids Recycling Center is a publicly owned waste water treatment plant and biosolids recycling center. The facility is a major source of NOX and VOC. The majority of the installations and processes at this source are subject to category specific, or presumptive SIP-approved RACT requirements. For other VOC emitting installations and processes, the Philadelphia AMS issued PA 51-9515 to the facility to impose RACT. The facility emits VOCs from both the Biosolids Recycling Center (i.e., composting) operation and the wastewater treatment process. PA 51-9515 requires that the Biosolids Recycling Center compost pile aeration blower exhausts be vented to biofilters. PA 51-9515 requires that the excess gas produced by the wastewater treatment process's anaerobic digestion of sludge be flared through waste gas burners. It also specifies that the wastewater treatment process adhere to its approved good maintenance and operation program, and that the composting operation adhere to good maintenance and operation of the existing biofilters and of the compost pile aeration system. PA 51-9515 imposes extensive testing requirements for VOC from its wastewater using EPA Method 624 and the “TOXCHEM+” computer program. PA 51-9515 also imposes extensive recordkeeping and reporting requirements as necessary to determine compliance with all SIP-approved RACT regulations including 25 Pa Code 129.91—129.94.

Stroehman Bakeries, Inc., located in Montgomery County, Pennsylvania produces a variety of breads, rolls, and buns. The bakery is a major source of VOC. The bakery generates ethanol, a VOC, because of the yeast used to produce the baked goods during the baking process. The PADEP issued Stroehman Bakeries PA-46-0003 to establish RACT. PA-46-0003 specifies that RACT for the bread oven and for the roll and bun oven is use of use of a catalytic oxidizer with a minimum inlet temperature of 550 degrees F. PA-46-0003 imposes VOC emissions limits of 3.1lbs/hr and 13.7 tpy from the bread oven and 1.2lbs/hr and 5.4 tpy from the roll and bun oven. PA-46-0003 requires source testing in accordance with 25 Pa Code 139 and imposes additional testing conditions to demonstrate compliance. PA-46-0003 requires that the test(s) results be reported to PADEP and that all records be for a period of not less than two years.

Sunoco, Inc. (R&M) operates a refinery located in Philadelphia, Pennsylvania. The refinery is a major NOX and VOC emitting facility. The majority of the installations and processes at this source are subject to category specific SIP-approved VOC regulations adopted by Pennsylvania in accordance with the applicable CTG(s), and to SIP-approved presumptive RACT requirements to control NOX. For other installations and processes, the AMS issued PA-1501/1517 to establish RACT. The PADEP submitted PA-1501/1517 to EPA as a SIP revision on behalf of AMS. PA-1501/1517 imposes NOX RACT requirements for the # 868 Fluid Catalytic Cracking Unit (FCCU) regenerator and for numerous heaters and boilers. PA-1501/1517 specifies that RACT for the FCCU consists of good combustion practices and limits the NOX emissions from the #868 FCCU to 569 tons per year on a rolling 365 day basis. PA-1501/1517 also includes case-by-case RACT determinations for numerous boilers and heaters. The permit specifies that NOX RACT for six units: the H-1 heater at Unit 433, the B-104 heater at Unit 1232, and Boilers #37, #38, #39, and #40 at the #3 Boilerhouse, is the use of ultra-low NOX burners. The permit specifies that RACT for the remaining combustion sources is combustion tuning. The permit also specifies NOX emissions limits for all of these units. For certain units, the permit also specifies maximum heat input limits. The NOX RACT limitations for the heaters and boilers are shown in the table below:

The facility emits fugitive VOC emissions from valves, pumps, flanges, compressors in VOC service and from cooling towers. PA-1501/1517 specifies that Sunoco must utilize an emissions leak detection and repair (LDAR) program as RACT to reduce emissions from the valves, pumps, flanges and compressors in VOC service, and conduct an inspection and maintenance/monitoring program as RACT to reduce fugitive VOC emissions from cooling towers. PA-1501/1517 imposes the recordkeeping and reporting requirements necessary to determine compliance with its VOC and NOX RACT requirements in accordance with 25 Pa Code 129.91-129.94.

The Tasty Baking Company is located in Philadelphia, Pennsylvania. The bakery is a major source of NOX emissions. The bakery does not generate VOC because it does not use yeast in its baking process. The small boilers at this source are subject to specific SIP-approved presumptive RACT requirements. The Philadelphia AMS issued PA-2054 to establish RACT an Alison 501-KB5 gas turbine rated at 45.4 MMBtu/hr. The PADEP submitted PA-2054 to EPA as a SIP revision on behalf of AMS. PA-2054 specifies that NOX RACT for this gas turbine consists of the use of water injection, and establishes NOX emission limits 10 lbs/hr and 44 tpy. PA-2054 imposes the testing, recordkeeping and reporting requirements necessary to demonstrate compliance with its RACT requirements in accordance with 25 Pa Code 129.91-129.94.

Transcontinental Gas Pipeline Corporation operates a natural gas compressor station, designated as Station #200, in Chester County, Pennsylvania. Station 200 is a major NOX and VOC emitting facility. Many of the installations and processes at this source are subject to specific SIP approved, or presumptive RACT requirements. For other installations and processes, PADEP imposes RACT requirements in PA-15-0017. The facility is equipped with 13 natural gas fueled reciprocating engines. PADEP determined that RACT for these 13 engines consists of the use of low emission combustion (LEC) equipment modifications. LEC equipment modifications include installation or modification of turbochargers, aftercoolers, inlet air systems, exhaust systems, power cylinder heads, fuel gas systems, ignition systems, cooling water systems, pistons, cylinder liners and camshafts. In addition to these equipment specifications, PA-15-0017 also imposes the following NOX and VOC emissions limits:

PA-15-0017 also includes the testing, recordkeeping and reporting conditions necessary to demonstrate compliance with its RACT requirements.

Worthington Steel Company's Malvern Plant, located in Chester County, Pennsylvania, is a steel processing and painting facility. The facility is a major source of NOX and VOC emissions. Many of the installations and processes at this source are subject to category-specific SIP approved, or presumptive RACT requirements. For the coil coating line (including clean-up operations) and the 23 Safety Kleen cold cleaners, PADEP issued OP-15-0016 to establish RACT. For the coil coating operation, OP-15-0016 restricts the VOC content of each coating to 2.6 lbs/gallon (minus water) as applied to the substrate. OP-15-0016 also requires that the clean-up solvent used at the coil coating equipment shall not result in VOC emissions in excess of pounds per hour, 15 pounds per day, and 2.7 tons per year. OP-15-0016 restricts the clean-up solvent used in its cold cleaners shall not result in VOC emissions in excess of 3 lbs/hr, 15 lbs/day and 2.7 tpy. OP-15-0016 requires the recordkeeping and reporting requirements necessary to determine compliance with 129.91-129.95.

There are 65 small NOX emitting units (space heaters, small boilers, and process annealing furnaces) that fire natural gas (units designated as C1-C41; C47—C51; and C55-C65), No. 2 fuel oil (C42-C46), or a combination of natural gas/fuel oil (C52-C54). These small units range in size from a rated heat input of less than 0.13 MMBtu/hr to 10.46 MMBtu/hr. Thirty-nine (39) of the 65 units are rated at less than 1MMBtu/hr, 22 are rated at or below 4MMBtu/hr, and 4 are rated from 6.27 to 10.46 MMBTU. OP-15-0016 requires that these units be operated and maintained done in accordance with manufacturer's specifications and good air pollution control practices which is consistent with the SIP-approved presumptive RACT requirements set forth in 25 Pa. Code Section 129.93(c)(1). Forty-seven (47) of these 65 small NOX emitting units are limited to 4380 hours of operation per year.

EPA is approving these SIP submittals because the Philadelphia AMS and PADEP established and imposed these RACT requirements in accordance with the criteria set forth in the SIP-approved RACT regulations applicable to these sources. The AMS and PADEP have also imposed recordkeeping, monitoring, and/or testing requirements sufficient to determine compliance with the applicable RACT determinations.

EPA is approving the SIP revisions to the Pennsylvania SIP submitted by PADEP to establish and require VOC and/or NOX RACT for 14 major of sources located in the Philadelphia area. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on October 22, 2001 without further notice unless EPA receives adverse comment by October 9, 2001. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Any parties interested in commenting must do so at this time. Please note that if adverse comment is received for a specific source or subset of sources covered by an amendment, section or paragraph of this rule, only that amendment, section , or paragraph for that source or subset of sources will be withdrawn.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.” See 66 FR 28355, May 22, 2001. This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. 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 establishing source-specific requirements for 14 named sources.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 5, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action approving the Commonwealth's source-specific RACT requirements to control VOC and NOX from 14 individual sources in Pennsylvania may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

EPA Region V is publishing this direct final notice of deletion of the Alsco Anaconda, Superfund Site from the NPL.

The EPA identifies sites that appear to present a significant risk to public health or the environment and maintains the NPL as the list of those sites. As described in section 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for remedial actions if conditions at a deleted site warrant such action.

Because EPA considers this action to be non-controversial and routine, EPA is taking it without prior publication of a notice of intent to delete. This action will be effective November 5, 2001 unless EPA receives adverse comments by October 9, 2001 on this document. If adverse comments are received within the 30-day public comment period on this document, EPA will publish a timely withdrawal of this direct final deletion before the effective date of the deletion and the deletion will not take effect. EPA will, as appropriate, prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the Alsco Anaconda Superfund Site and demonstrates how it meets the deletion criteria. Section V discusses EPA's action to delete the Site from the NPL unless adverse comments are received during the public comment period.

Section 300.425(e) of the NCP provides that releases may be deleted from the NPL where no further response is appropriate. In making a determination to delete a release from the NPL, EPA shall consider, in consultation with the State, whether any of the following criteria have been met:

i. Responsible parties or other persons have implemented all appropriate response actions required;

ii. All appropriate Fund-financed (Hazardous Substance Superfund Response Trust Fund) responses under CERCLA have been implemented, and no further response action by responsible parties is appropriate; or

iii. The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.

Even if a site is deleted from the NPL, where hazardous substances, pollutants, or contaminants remain at the deleted site above levels that allow for unlimited use and unrestricted exposure, CERCLA section 121(c), 42 U.S.C. 9621(c), requires that a subsequent review of the site be conducted at least every five years after the initiation of the remedial action at the deleted site to ensure that the action remains protective of public health and the environment. If new information becomes available which indicates a need for further action, EPA may initiate remedial actions. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

The following procedures apply to deletion of this Site:

(1) The EPA consulted with Ohio on the deletion of the Site from the NPL prior to developing this direct final notice of deletion.

(2) Ohio concurred with deletion of the Site from the NPL.

(3) Concurrently with the publication of this direct final notice of deletion a notice of intent to delete is published today in the “Proposed Rules” section of the Federal Register, is being published in a major local newspaper of general circulation at or near the Site, and is being distributed to appropriate federal, state, and local government officials and other interested parties. The newspaper notice announces the 30-day public comment period concerning the notice of intent to delete the Site from the NPL.

(4) The EPA placed copies of documents supporting the deletion in the site information repositories identified above.

(5) If adverse comments are received within the 30-day public comment period on this document EPA will publish a timely notice of withdrawal of this direct final notice of deletion before its effective date and will prepare a response to comments and continue with a decision on the deletion based on the notice of intent to delete and the comments already received.

Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions should future conditions warrant such actions.

The following information provides EPA's rationale for deleting this Site from the NPL:

The Alsco Anaconda Superfund Site is located approximately 50 miles south of Akron, Ohio within the Gnadenhutten village limits. Gnadenhutten, a community of about 1,300 residents, is located within Clay Township in Tuscarawas County, along the floodplain of the Tuscarawas River. The site boundaries are the Penn-Central Railroad right-of-way, the AmeriMark manufacturing site, Anaconda Drive (County Road 39), and the Tuscarawas River on the northwest, northeast, southeast, and southwest, respectively. The approximately 4.8 acre site includes four (4) source areas formerly known as the settling basin (consisting of the northern and southern impoundments), the sludge pit, and the wooded area. The general vicinity of the site can be described as rural, characterized by farmland and sparse population. The nearest residence is southeast of the main plant, approximately 1,000 feet from the former source areas. Groundwater from the Site flows to the southwest toward and into the Tuscarawas River, away from local municipal wells located approximately 0.5 miles upgradient of the Site.

From, at least 1965 to 1978, the Site was used for the disposal of wastewater and wastewater treatment sludge that were generated by the production of aluminum products. These sludge met the RCRA definition of F019 hazardous wastes. The amount of sludge disposed was the equivalent of approximately 3,240 cubic square yards. The impoundments and sludge pit contained contaminants such as cyanide, chromium, polychorinated biphenyls (PCB)s, arsenic, cadmium, lead, mercury, and zinc. A wooded low-lying area near the Tuscarawas River received overflow from the impoundments. The wastewater was discharged to the river. After 1978, sludge was disposed of in an off-site facility, but the wastewater discharges continued to the impoundments.

The EPA conducted a preliminary assessment of the Site in 1983 in an effort to identify and characterize the contamination. The results of the assessment indicated the Site posed potential threats to human health and the environment through dermal contact with or ingestion of contaminated soil, sediments, ground water, and surface water, as well as through inhalation of airborne contaminated-particulate matter. These preliminary studies led the Atlantic Richfield Company (ARCO), one of the Potentially Responsible Party's (PRP's), to initiate a Remedial Investigation/Feasibility Study (RI/FS) in 1985. The Site was eventually added to the final NPL list on June 10, 1986, 51 FR 21054.

The Site was divided into two (2) operable units after EPA rejected the groundwater portion of Remedial Investigation Report prepared by ARCO in 1989. The 2 operable units have been designated as the Source Material Operable Unit (SMOU) and the Groundwater Operable Unit (GWOU).

Records of Decisions (RODs) were issued for the SMOU and GWOU on September 8, 1989 and September 28, 1992, respectively. To implement the selected remedies under the RODs, U.S. EPA issued unilateral administrative orders (UAOs) to the PRPs ARCO and Harvard Industries on December 28, 1989 for the SMOU after negotiations failed. A UAO to conduct GWOU remedial activities outlined in the ROD was issued to ARCO in June 23, 1993.

The remedial action objectives of the ROD for the SMOU were to excavate and treat address all contaminated waste sludges and underlying soils. The remedy selected to meet these objectives included; (1) excavation of contaminated soil with greater than 500 parts per million (ppm) of polychlorinated biphenyls (PCBs) and transportation off-site to a facility permitted to incinerate PCB waste; (2) excavation of remaining sludge and underlying soil, which included sludge contaminated with less than 500 ppm of PCBs, to levels meeting RCRA clean closure requirements. The material would then be sent for treatment and disposal to a facility in compliance with the CERCLA off-site policy or to a reclamation/reuse facility; and (3) backfill selected areas, and recontour and vegetate any excavated or cleared areas; maintain the present security fence; and record the notice of the remedial action with the property deed.

The selected remedy was designed to eliminate the principal threat posed by the Site by removing the contaminated materials, thereby reducing the potential for exposure to cyanide, PCBs, chromium, and the other contaminants detected in site sludge and soils. To achieve this, the ROD required that all sludges and underlying soils be removed to a depth that prevents the ingestion of or direct contact with waste having a cumulative Hazard Index (HI) value of one for noncarcinogens or having a 1×10− 6 cumulative excess cancer risk for carcinogens. The ROD also required that all sludge and underlying spoil be removed such that further contamination to groundwater in excess of Maximum Contaminant Levels (MCLs) is prevented.

The remedial action objectives of the ROD for the GWOU were to address the contaminated on- and off-property groundwater at the Site. The underlying premise was that the chosen remedy for the SMOU would result in clean closure of the Site by removing the source of groundwater contamination. The remedy selected to meet these objectives included; (1) natural flushing and attenuation of contaminants in the aquifer allowing groundwater to discharge to the Tuscarawas River; (2) sampling and laboratory analysis of the groundwater from monitoring wells; (3) installation of background wells; (4) institutional controls, including deed restrictions, that prevent installation of drinking water wells within the Site boundaries until remedial action levels for groundwater has been achieved; and (5) sampling of Tuscarawas River sediments and benthic organisms.

No additional response action(s) is required. Those areas associated with GWOU and SMOU have been adequately addressed by the response actions already taken. Alsco Anaconda meets all site completion requirements specified under OSWER Directive 9320.2-09A-P (Close Out Procedures for National Priorities List Sites). Current site conditions are protective of human health and the environment, both for the SMOU and the GWOU. Cleanup objectives set forth in the RODs for this site and in the UAOs have been achieved.

The final SMOU RD Report (entitled SMOU Closure Project Manual) was submitted on July 31, 1991. The RA contract was awarded on November 22, 1991. A final Remedial Action Plan, was submitted on February 28, 1992.

The RA construction for the SMOU began on March 18, 1992. The RA activities included excavation of the waste sludge and affected underlying soil from the northern and southern impoundments and the sludge pit (this material did not contain PCBs at levels above 50ppm), conditioning the material, and transporting it off-site to the Peoria Disposal Company in Peoria, Illinois, a RCRA-permitted facility. Excavation of the “hot” PCB material (e.g., material containing greater than 500 ppm PCBs) from the wooded area was completed, and the material was transported to Aptus, Inc., in Coffeyville, Kansas, and incinerated. The remaining wooded area sludge with F019 wastes and PCBs at levels from 50 to 500 ppm, was sent to a RCRA/TSCA facility, the Chemical Waste Management Landfill in Model City, New York. Debris and non-hazardous materials were sent to the Suburban RDF Landfill in Brownsville, Ohio.

During excavation, air quality was monitored and dust suppression measures were taken. Confirmation samples were also taken as work progressed to ensure that cleanup levels had been met. As areas were confirmed clean, backfilling and regrading of clean areas of the Site took place.

In the course of conducting the remedial action, it was found that the extent of contamination was much greater than had been anticipated in the RI/F and ROD. Different contamination was found (e.g., material contaminated with volatile organic compounds, often referred to in site documents as “black material,” as well as buried drums). Excavation of contaminated materials continued until December 1992, at which point ARCO stopped work.

The discovery of additional contamination described above resulted in ARCO conducting a Supplemental Investigation (SI) from September through November of 1993. Activities related to the SI included undertaking further characterization of the waste and conducting additional sampling of the drums uncovered and/or generated during the 1992 remedial actions. Also, further studies as to the extent of the remaining risk from the residual contamination were conducted by ARCO from September 12 through November 13, 1993. The SI Report describing the study results was first presented to the Agencies on March 17, 1994. With approval from EPA on how much additional excavation was required to meet risk based cleanup requirements, ARCO proceeded to complete the cleanup work by September 1995. These activities included excavation of three areas east of the SMOU, five within the SMOU, and much of the ARAN area. Additional backfilling and regrading of the Site also took place in 1995.

In June 1996, an Explanation of Significant Differences (ESD) was issued by EPA, documenting the volume increases and discovery of “black material” and buried drums.

In September 1998, U.S. EPA approved ARCO's RA Implementation Report for the SMOU, first submitted in 1992 and subsequently modified over the intervening years, documenting that all remedial action activities associated with the SMOU had been completed.

The RA for the GWOU could not begin until the contaminated source material had been removed since it was not practical to install wells which might need to be abandoned during the additional SMOU excavation activities. Monitoring well installation activities were conducted from August 21, 1995, through September 13, 1995. Activities involved in the GWOU RA included installation of 6 shallow and 5 intermediate depth monitoring wells, 2 shallow and 1 intermediate depth background wells, abandonment of 3 existing monitoring wells, establishment of a bench mark to measure river levels, surveying of the well locations, and development of the wells.

ARCO has conducted fifteen (15) rounds of groundwater surveys, overseen by EPA and OEPA. With the exception of cyanide and arsenic, contaminants of interest established for this site have been meeting their respective cleanup criteria since 1999. The last three rounds of monitoring (May, August, and October of 2000) indicated that cyanide and arsenic have now achieved cleanup goals.

In the ROD and UAO groundwater was to be monitored until cleanup standards were met. The cleanup standards were risk-based as follows: concentrations of site-related contaminants that also appear in background wells shall be reduced to their respective background concentrations, unless one of the following conditions results in a higher cleanup concentration. In no case shall contaminant concentrations be required to be reduced below background concentrations. Site-related contaminants with an existing MCL shall be reduced to a concentration at or below the MCL. Carcinogenic site-related contaminants shall be reduced to levels that pose a cumulative carcinogenic risk of no greater than 1×10−6. Concentrations of noncarcinogenic site-related contaminants shall be reduced to levels that pose a cumulative HI no greater than one for any specific toxicological category.

Operation and maintenance (O &M) plans developed and implemented for this site have been sufficient to maintain effectiveness of the remedy. The O & M work required for the Site consisted of maintaining the gate and fence which surrounds the Site in order to prevent unauthorized entry. Excavation and off-site disposal of site contaminants to levels that met RCRA clean closure requirements were completed in 1995, therefore, additional O & M measures were not needed. For the GWOU, O & M involved groundwater monitoring. Now that cleanup standards have been met, there is no further need to continue this work. In addition, institutional controls implemented for this site have prevented the potentially affected population from being exposed to hazards posed by the during Site remediation activities. Now that clean-up standards have been met these institutional controls are no longer necessary.

A five-year review of the GWOU was conducted by Region 5 in the summer of 1997. The report recommended that groundwater monitoring continue until cleanup standards for all site related contaminants were met. Now that cleanup standards have been met, the need to conduct another five-year review, scheduled for 2002, is no longer necessary. The site is available for unlimited use and unrestriced exposure, therefore, another Five-Year review is no longer necessary.

Public participation activities have been satisfied as required in CERCLA section 113(k), 42 U.S.C. 9613(k), and CERCLA section 117, 42 U.S.C. 9617. Documents in the deletion docket which EPA relied on for recommendation of the deletion on this Site from the NPL are available to the public in the information repositories.

The EPA, with concurrence of the State of Ohio, has determined that all appropriate responses under CERCLA have been completed, and that no further response actions, under CERCLA are necessary. Therefore, EPA is deleting the Site from the NPL.

Because EPA considers this action to be non-controversial and routine, EPA is taking it without prior publication. This action will be effective November 5, 2001 unless EPA receives adverse comments by October 9, 2001. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final notice of deletion before the effective date of the deletion and it will not take effect. EPA will prepare a response to comments and as appropriate continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

Sidalcea oregana var. calva, the Wenatchee Mountains checker-mallow, is known to occur at six sites (populations) only in the mid-elevation wetlands and moist meadows of the Wenatchee Mountains of central Washington. The plant was first collected in 1893 by Sandberg and Leiburg from the Icicle Creek area, near Leavenworth, and from wet meadows near Peshastin, both in Chelan County. The type specimen collected by Hitchcock in 1951 was from Camas Land in Chelan County (Gamon 1987). The plant communities where the species is found are usually associated with meadows that have surface water or saturated soils during the spring and early summer. The species may also be found in open conifer forests dominated by Pinus ponderosa (ponderosa pine) and Pseudotsuga menziesii (Douglas-fir), and on the margins of shrub and hardwood thickets adjacent to seeps, springs, or small drainages. Soils are primarily composed of silt loams and clay loams, with a high percentage content of organic material, that are poorly drained.

A member of the mallow family (Malvaceae), Sidalcea oregana var. calva is a herbaceous perennial with a stout taproot that branches at the root crown giving rise to several stems. Plants range in height from 20 to 150 centimeters (cm) (8 to 60 inches (in.)). Plants vary from glabrous (lacking hairs and glands) to pubescent (hairy) or stellate (with star-shaped hairs) below, and finely stellate above. Flower clusters with one to many stalked flowers are arranged singly along a common stem. The flowers have pink petals 1 to 2 cm (0.4 to 0.8 in.) long, and are borne on stalks ranging from 1 to 10 millimeters (mm) (0.04 to 0.4 in.) in length. The calyx (outer whorl of floral parts) ranges from uniformly finely stellate, to bristly with a mixture of longer, simple to four-rayed, spreading hairs. These hairs are sometimes as long as 2.5 to 3 mm (0.1 to 0.12 in.) (Hitchcock and Cronquist 1961).

Flowering begins in the middle of June and peaks in the last half of July. Fruits are ripe in August. The species reproduces only from seed and, based on examination of seed capsules, the production of seed appears to be high (Gamon 1987). The somewhat clumped distribution of mature Sidalcea oregana var. calva plants suggests that seed dispersal is restricted to the areas near mature plants, unless the seeds are moved by animals or transported by water.

The physical and biological habitat features essential to the conservation of Sidalcea oregana var. calva include open meadows with surface water or saturated upper soil profiles in the spring and early summer and maintaining the hydrologic processes on which these areas depend; open conifer forests dominated by ponderosa pine and Douglas-fir; and the margins of shrub and hardwood thickets. All of these habitats have surface water or saturated soils well into the early summer. Elevations range from 488 to 1,000 meters (m) (1,600 to 3,300 feet (ft)). The species is generally found on flats or benches, but may also occur in small ravines and occasionally on gently sloping uplands.

Concentrations of Sidalcea oregana var. calva are found in the wetter portions of open-forest moist-meadow habitat, in slight topographic depressions, on the perimeter of shrub and hardwood thickets dominated by quaking aspen (Populus tremuloides), and along permanent or intermittent streams in sparsely forested draws. Frequently associated plant species include quaking aspen, black hawthorn (Crataegus douglasii), common snowberry (Symphoricarpos albus), serviceberry (Amelanchier alnifolia), few-flowered peavine (Lathyrus pauciflorus), northern mule's-ear (Wyethia amplexicaulis), sticky purple geranium (Geranium viscosissimum), western bistort (Polygonum bistortoides), leafy aster (Aster foliaceus), Watson's willow-herb (Epilobium watsonii), false hellebore (Veratrum californica), and rudbeckia (Rudbeckia occidentalis) (Washington Department of Natural Resources (WDNR) 2000). One-half of the Sidalcea oregana var. calva populations are found in association with Delphinium viridescens (Wenatchee larkspur), a former Federal category 1 candidate plant species. The latter species was removed from candidate status on February 28, 1996 (61 FR 7610), because it was found to be more abundant or widespread than previously believed.

During the summer of 1999, a sixth population was discovered on private property in Pendleton Canyon, an area burned and opened up by the Tyee Fire of 1994. This location is less than 8 kilometers (km) (5 miles (mi)) from the Camas Meadow population. While the discovery of the population occurred prior to the December 22, 2001 (64 FR 71680), listing of the species, we did not become aware of the discovery until after the publication date. This newly discovered population is included in the designation of critical habitat for the species.

The wetland and moist meadow complex at Camas Meadows, an area managed as a Natural Area Preserve (NAP) by the WDNR, contains the largest population of Sidalcea oregana var. calva. The Camas Meadow NAP includes approximately 539 hectares (ha) (1,333 acres (ac)) (WDNR 2000), and is located in the rural/wildland interface about 16 km (10 mi) south of Leavenworth, Washington. An estimated 3,300 Sidalcea oregana var. calva individuals occur there. Low-density, rural residential home sites have been developed adjacent to the NAP. Also, the Camas Meadows Bible Camp has occupied the southern perimeter of the meadow since the late 1940s, and the U.S. Forest Service (Forest Service) administers properties surrounding the NAP.

Another population is located north of the Camas Meadow NAP, on land administered by WDNR, and has approximately 30 individual plants. At the time the final listing rule was published (64 FR 71680), this population occurred on private land. The private landowners have since traded this land to the State of Washington.

In addition to these two populations of Sidalcea oregana var. calva, two other populations of Sidalcea oregana var. calva are known to be present on private lands. One population, of about 200 individuals, is located at the Mountain Home Resort. The second population is located in Pendleton Canyon, and consists of about 60 plants. The other two known populations are located on Forest Service lands, containing less than 10 individual plants combined. The combined number of individual plants for all six populations is approximately 3,600.

The primary threats to Sidalcea oregana var. calva include habitat fragmentation and destruction due to alterations of hydrology, rural residential development and associated impacts, conversion of native wetlands to orchards and other agricultural uses, competition from native and non-native plants, recreation, seed and plant collection, and fire suppression and associated activities. To a lesser extent, the species is threatened by livestock grazing, road construction, and timber harvesting and associated impacts including changes in surface runoff in the small watersheds in which the plant occurs.

Federal action on Sidalcea oregana var. calva began when we published an updated Notice of Review (NOR) for plants, published in the Federal Register on December 15, 1980 (45 FR 82480). This notice included Sidalcea oregana var. calva as a category 1 candidate species. Category 1 candidates were defined as those taxa for which we had sufficient information on the biological vulnerability and threats to support preparation of listing rules. The NOR, published on September 27, 1985 (50 FR 39526), included Sidalcea oregana var. calva as a category 2 candidate species. Category 2 candidates were defined as taxa for which available information indicated that a proposal to list as endangered or threatened was possibly appropriate, but for which persuasive data on biological vulnerability and threats were not sufficient to support a proposed rule.

Notices of Review published on February 21, 1990 (55 FR 6184), and September 30, 1993 (58 FR 51144), identified Sidalcea oregana var. calva as a category 1 candidate species. Upon publication of the February 28, 1996, Notice of Review of Plant and Animal Taxa that are Candidates for Listing as Endangered or Threatened Species (61 FR 7596), we stopped using the category designations and simply included Sidalcea oregana var. calva as a candidate species. Candidate species are those for which we have on file sufficient information on biological vulnerability and threats to support proposals to list the species as threatened or endangered.

On August 1, 1997, we published the proposed rule to list Sidalcea oregana var. calva as an endangered species (62 FR 41328). The final determination to list Sidalcea oregana var. calva as an endangered species was published in the Federal Register on December 22, 1999 (64 FR 71680). In the final rule, we found that designation of critical habitat for the species was prudent. However, due to insufficient funding in our listing budget, critical habitat designation was deferred in order to focus our resources on higher priority critical habitat, including court-ordered designations, and other listing actions (64 FR 71685), while still allowing us to put in place protections needed for the protection of S. oregana var. calva through the listing process.

Subsequent to the final rule listing the species as endangered, the Southwest Center for Biological Diversity filed suit to compel us to designate critical habitat for several species, including Sidalcea oregana var. calva (Southwest Center for Biological Diversity et al. v. Babbitt-Civil, No. 99-D-1118). We entered into a settlement agreement with the plaintiff and agreed to propose critical habitat with a final determination to be made no later than August 31, 2001. The proposed rule to designate critical habitat for the species was published in the Federal Register on January 18, 2001 (66 FR 4783). In the proposal, we determined that it was prudent to designate approximately 2,484 ha (6,135 ac) of lands in Chelan County as critical habitat. The publication of the proposed rule opened a 60-day public comment period, which closed on March 19, 2001. On May 15, 2001, we published a notice announcing the reopening of the comment period on the proposal to designate critical habitat for Sidalcea oregana var. calva, and a notice of availability of the draft economic analysis on the proposed determination (66 FR 26827). This second public comment period closed on June 14, 2001.

We contacted appropriate Federal and State agencies, scientific organizations, and other interested parties and invited them to comment. In addition, we invited public comment through the publication of a notice in the Wenatchee World on May 20, 2001.

On April 4, 2001, we held an informal public workshop in Leavenworth, Washington, to consider economic and other relevant impacts of designating critical habitat for Sidalcea oregana var. calva. Eleven individuals from the local community attended the workshop. The meeting was also attended by representatives from WDNR, the Forest Service, and The Nature Conservancy. No formal comments were accepted at this meeting; however, we encouraged the local community to provide written comments during the time when the comment period was reopened in May. All individuals who attended the meeting, in addition to all the landowners who live in the vicinity of the designated critical habitat, were notified by letter at the time the comment period was reopened.

We received two comments regarding the designation of critical habitat for the Wenatchee Mountains checker-mallow. One comment was received from the WDNR, Southeast Region, while the second comment was received from the Conservation Chair, Washington Native Plant Society. Both letters supported the designation of critical habitat. The letter from the Washington Native Plant Society raised several points that merit consideration. The letter concurred with our decision to exclude one of the six known populations for Sidalcea oregana var. calva, a disjunct population occurring on private property, as critical habitat. We had determined that this occurrence of the plant was not essential to the conservation of the species. Additionally, the letter recommended that although this occurrence was not “critical to the taxon's survival”, it may represent an important genotype for the species and contribute to the species' genetic variability, and that seed should be collected from the population and maintained in an appropriate seed bank. We concur with this recommendation and, after getting permission from the landowners, will plan for seed collection, seed banking, and genetic testing of all known populations of the species, which will contribute to information requirements for the recovery of the species. Finally, because several populations of the species were adversely affected by wildfire during the summer of 1994, the commenter recommended developing protocols for fighting fires specific to areas with endangered plants where critical habitat has been designated. The Federal Wildland Fire Policy (1985) was developed by the Departments of Agriculture and the Interior to provide a common approach to wildland fire management that is consistent with public health and environmental considerations. The policy states that the protection priorities are; (1) human life, and (2) property and natural/cultural resources. We concur with the comment and, consistent with the policy, a recovery plan for this species will be developed with these considerations in mind.

In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited independent expert opinions from three knowledgeable plant ecologists and/or botanists who are familiar with Sidalcea oregana var. calva. We received comments from only one of the peer reviewers on the proposed critical habitat designation. Those comments were incorporated into this final rule.

There are no significant changes from the proposed rule to this final rule.

Critical habitat is defined in section 3(5)(A) of the Act as—(i) the specific areas within the geographic area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection; and (ii) specific areas outside the geographic area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Conservation is defined in section 3(3) of the Act as the use of all methods and procedures which are necessary to bring any endangered or threatened species to the point at which listing under the Act is no longer necessary. Regulations under 50 CFR 424.02(j) define special management considerations or protection to mean any methods or procedures useful in protecting the physical and biological features of the environment for the conservation of the listed species.

Within the geographic area occupied by the species, we will designate only areas currently known to be essential. Essential areas should already have the features and habitat characteristics that are necessary to sustain the species. We will not speculate about what areas might be found to be essential if better information became available, or what areas may become essential over time. If the information available at the time of designation does not show that an area provides essential life cycle needs of the species, then the area should not be included in the critical habitat designation. Within the geographic area occupied by the species, we will not designate areas that do not now have the primary constituent elements, as defined at 50 CFR 424.12(b), that provide essential life cycle needs of the species.

Our regulations state that, “The Secretary shall designate as critical habitat areas outside the geographic area presently occupied by the species only when a designation limited to its present range would be inadequate to ensure the conservation of the species.” (50 CFR 424.12(e)). Accordingly, when the best available scientific and commercial data do not demonstrate that the conservation needs of the species require designation of critical habitat outside of occupied areas, we will not designate critical habitat in areas outside the geographic area occupied by the species.

When we designate critical habitat at the time of listing, as required under Section 4 of the Act, or under short court-ordered deadlines, we may not have the information necessary to identify all areas which are essential for the conservation of the species. Nevertheless, we are required to designate those areas we know to be critical habitat, using the best information available to us.

Our Policy on Information Standards Under the Endangered Species Act, published in the Federal Register on July 1, 1994 (Vol. 59, p. 34271), provides criteria, establishes procedures, and provides guidance to ensure that our decisions represent the best scientific and commercial data available. It requires Service biologists, to the extent consistent with the Act and with the use of the best scientific and commercial data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When determining which areas are critical habitat, a primary source of information should be the listing package for the species. Additional information may be obtained from a recovery plan, articles in peer-reviewed journals, conservation plans developed by states and counties, scientific status surveys and studies, and biological assessments or other unpublished materials.

In determining areas that are essential to conserve Sidalcea oregana var. calva, we used the best scientific information available to us. This information included habitat suitability and site-specific species information, as well as discussions with Wenatchee National Forest and WDNR scientists about the management and conservation of this species. We have emphasized areas of current and historical Sidalcea oregana var. calva occurrences; maintenance of the genetic interchange necessary for the viability of a regional metapopulation; and maintenance of the integrity of the watershed hydrologic processes on which the wetlands and moist meadows that support the species depend. A metapopulation is a group of spatially separated populations that occasionally exchange genes. Individual populations may go extinct, but are later recolonized from another population. Linking the known populations provides pathways for gene flow, as well as opportunities for colonization by the species of areas where it may be extirpated. We believe that the maintenance of a viable regional metapopulation, as well as the integrity of the hydrologic processes that control the wetland and moist meadow habitat are essential to the conservation of Sidalcea oregana var. calva.

We used data on known and historic locations and soil maps to identify areas essential to the conservation of the species. We mapped critical habitat based on orthoquads and aerial photos available from WDNR, and ground-checked these areas. We included areas with wetland vegetation communities dominated by native grasses and forbs and generally free of woody shrubs, hardwood trees, or conifers that would produce shade and/or compete with Sidalcea oregana var. calva. Seeps, springs, and riparian corridors that have clay loam and silt loam soils were included because of their importance to maintaining the hydrologic processes that are essential to the conservation of the species. Inclusion of these areas also allows for the natural expansion of Sidalcea oregana var. calva populations that is essential for the conservation of the species.

In accordance with section 3(5)(A)(i) of the Act, and regulations at 50 CFR 424.12, in determining which areas to propose as critical habitat, we must consider those physical and biological features (primary constituent elements) that are essential to the conservation of the species. These include, but are not limited to, the following: space for individual and population growth, and for normal behavior; food, water, air, light, minerals or nutrients, or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing of offspring, germination, or seed dispersal; and habitats that are protected from disturbance or are representative of the historic geographical and ecological distribution of a species.

The area we are designating as critical habitat provide the primary constituent elements for the species, which include: surface water or saturated upper soil profiles; a wetland plant community dominated by native grasses and forbs, and generally free of woody shrubs and conifers that would produce shade and competition for Sidalcea oregana var. calva; seeps and springs on fine textured soils (clay loams and silt loams), which contribute to the maintenance of hydrologic processes necessary to support meadows which remain moist into the early summer; and elevations of 488-1,000 m (1,600-3,300 ft).

In an effort to map areas that have the features essential to the conservation of the species, we used data on known Sidalcea oregana var. calva locations. We attempted to avoid developed areas, such as towns and other similar lands, that are unlikely to contribute to Sidalcea oregana var. calva conservation. However, mapping limitations did not allow us to exclude all developed areas, such as towns, or housing developments, or other lands unlikely to contain the primary constituent elements essential for conservation of Sidalcea oregana var. calva. Existing features and structures within the boundaries of the mapped unit, such as buildings, roads, aqueducts, railroads, airports, other paved areas, lawns, and other rural residential landscaped areas, will not contain one or more of the primary constituent elements and are, therefore, not critical habitat. Federal actions limited to those areas would not trigger a section 7 consultation, unless they affect the species and/or primary constituent elements in adjacent critical habitat.

We are designating critical habitat for one unit, comprised of 2,484 ha (6,135 ac). The approximate area, by land ownership, of this unit is shown in Table 1.

Lands are designated under private, State, and Federal ownership. All of the designated critical habitat for Sidalcea oregana var. calva is in Chelan County, Washington, and includes Camas Creek and the adjacent Pendleton Canyon sub-basin. The area designated for critical habitat includes all of the lands that have the primary constituent elements below 1,000 m (3,300 ft) within the Camas Creek watershed, and in the small tributary within Pendleton Canyon before its confluence with Peshastin Creek, and includes: (1) The entire area encompassed by the Camas Meadow Natural Area Preserve, which is administered by the WDNR; (2) two populations located on Forest Service land; (3) the small drainage north of the Camas Land, administered by the WDNR; and (4) the population on private property located in Pendleton Canyon; (5) the wetland complex of these watersheds necessary for providing the essential habitat components on which recovery and conservation of the species depends.

Portions of the designated critical habitat are presumably unoccupied by Sidalcea oregana var. calva at present, although the entire area has not been recently surveyed. Soil maps indicate that the entire area provides suitable habitat for the species, and there may be additional, but currently unknown, populations present here. Wetlands and moist meadow habitats (native grassland and forb-dominated vegetation) suitable for Sidalcea oregana var. calva are generally surrounded by upland areas, which are dominated by ponderosa pine and Douglas-fir forests. While these upland areas are less suitable as habitat for the species, because protection of the hydrological processes is necessary to ensure the viability of the wetland habitat of the species, we consider the entire area essential to the survival, eventual recovery, and delisting of Sidalcea oregana var. calva.

Pursuant to the definition of critical habitat in section 3 of the Act, any area so designated must also require “special management considerations or protections.” Some areas essential to the conservation of the species may not be designated critical habitat if they already have adequate special management. Adequate special management or protection is provided by a legally operative plan that addresses the maintenance and improvement of the essential elements and provides for the long-term conservation of the species. We consider a plan adequate when it meets all of the following three criteria: (1) The plan provides a conservation benefit to the species (i.e., the plan must maintain or provide for an increase in the species' population or the enhancement or restoration of its habitat within the area covered by the plan); (2) the plan provides assurances that the management plan will be implemented (i.e., those responsible for implementing the plan are capable of accomplishing the objectives, have an implementation schedule and/or have adequate funding to implement the management plan); and (3) the plan provides assurances the conservation plan will be effective (i.e., it identifies biological goals, has provisions for reporting progress, and is of a duration sufficient to implement the plan and achieve the plan's goals and objectives). If an area is covered by a plan that meets these criteria, it does not constitute critical habitat as defined by the Act.

The Camas Land NAP is managed by the WDNR, and a final Management Plan (Plan) for the area was approved in June 2000. The NAP was established in 1989 to protect the large populations of Sidalcea oregana var. calva and Delphinium viridescens (Wenatchee larkspur) that occur at Camas Meadow. The general management policy described in the Plan applies to all NAPs managed by the WDNR. These include: (1) Protection of outstanding examples of rare or vanishing terrestrial or aquatic ecosystems, rare plant and animal species, and unique geologic features; (2) the role of NAPs as a baseline to compare with similar ecosystems that are under the influence of human activities; and (3) areas that are important to preserving natural features of scientific or educational value. However, the Plan does not provide a specific management plan or prescription designed to conserve Sidalcea oregana var. calva, beyond permitting natural ecological and physical processes to continue (WDNR 2000). The Plan does call for management actions to enhance wet meadow habitat, which will benefit Sidalcea oregana var. calva by removing competing vegetation, including controlling noxious weeds; thinning ponderosa pine in the uplands; and improving and replacing culverts. However, these actions have not yet been implemented, and it is too early to assess their effectiveness.

Although the species is listed as endangered by the WDNR's Natural Heritage Program (1994), there is no State Endangered Species Act in the State of Washington for plants. The WDNR designation provides no legal protection for Sidalcea oregana var. calva, and there are no State laws that specifically protect plants on State lands. Therefore, we believe that this management plan alone does not provide sufficient protection for Sidalcea oregana var. calva, and have included the Camas Land NAP within the critical habitat designation.

Developed areas on the periphery of the Camas Land NAP and the Camas Meadow Bible Camp located on the south side of the Camas Land, within the area designated as critical habitat, are not considered as essential to the conservation of the species. These developed areas have been altered by the planting of lawns, installation of septic systems, and horse pastures and, therefore, do not contain the primary constituent elements necessary for the long-term protection and conservation of Sidalcea oregana var. calva.

We have determined that the habitat supporting the population found at the Mountain Home Resort (Resort) is not essential to the conservation of the species. This population is disjunct from the remaining populations, and located in an area entirely surrounded with private residences, private timberlands, and a road administered by Chelan County. The habitat on this property that contains Sidalcea oregana var. calva, and the former candidate species Delphinium virdescens, is confined to a small linear area associated with a drainage ditch adjacent to the Mountain Home road and is bordered on the north and south by gravel access roads leading to residences. It is likely that the habitat resulted from the construction of the road and the creation of the drainage ditch. The habitat is now dominated by non-native, sod-forming grasses and forbs mixed with native vegetation (Dottie Knecht, Forest Service, pers. comm. 2000). The class-B Washington State noxious weed, Potentiall recta (sulfur cinquefoil) (Washington Administrative Code 16-750-011) is frequently encountered in monitoring plots at this site, although at low densities (D. Knecht, pers. comm. 2000). Moving out of the occupied habitat and up the hill towards the Resort, the vegetation is also dominated by sod-forming pasture and lawn grasses, including Agrostis alba (creeping bentgrass), Alopecuris pratensis (meadow foxtail), Phleum pratense (timothy grass), and Bromus inermis (smooth brome). These species are not consistent with the primary constituent elements.

Through observation of the adjacent properties along the Mountain Home road, it is evident that, if the Resort were not present and the land had not been cleared to create a vista, the marginal habitat where the small population is found at this site would be forested with conifers mixed with hardwood trees and shrubs. Such habitat does not contain the vegetative requirements and open conditions of the primary constituent elements.

The population at the Resort is also disjunct from the other populations of the species, which are more than 16 km (10 mi) distant. Because of fragmentation and the patchy distribution of habitat between this population and other populations of the species, the persistence of this population cannot be assured. We believe that the most appropriate conservation strategy for Sidalcea oregana var. calva is one that focuses on the protection and expansion of the core habitat of the species rather than the protection of isolated populations of doubtful viability. Except through artificial means, there is no opportunity for gene exchange between this population and the other populations. Although no genetic testing has been conducted for this species, a small population, such as that found at the Resort, is likely to have reduced genetic diversity, which can result in decreased population viability due to inbreeding (Schemske et al. 1994).

Although the ability to predict random environmental events (stochastic events) is low, events such as forest fires (e.g., the 1994 Rat Creek and Hatchery Creek Fires) and rain-on-snow flooding do occur. The effects of these stochastic events are most acute in small populations (Schemske et al. 1994). As a result of an increased importance of stochastic processes and changes in ecological interactions in declining populations, the probability of a population extirpation is expected to be negatively correlated with its size (Schemske et al. 1994).

The population found at Pendleton Canyon is on privately-owned land that has been included as critical habitat because it is essential to the conservation of Sidalcea oregana var. calva. It is located in a wildland setting with none of the modifications typically associated with a residence, unlike the private residences near Camas Meadow or the population of Sidalcea oregana var. calva at the Resort which lack the primary constituent elements and have been excluded from critical habitat designation.

The Recovery Team for Sidalcea oregana var. calva will be providing guidance on recovery planning for this species, and at that time, they may provide additional guidance regarding the areas designated as critical habitat. We will review any of the Recovery Team's recommendations and re-examine our critical habitat designation, if necessary, to provide for the conservation of the species.

Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that may eventually be determined to be necessary for the recovery of the species. For these reasons, all should understand that critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery. Areas outside the critical habitat designation will continue to be subject to conservation actions that may be implemented under section 7(a)(1) and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard and the section 9 take prohibition, as determined on the basis of the best available information at the time of the action. We specifically anticipate that federally funded or assisted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome.

Critical habitat receives protection under section 7 of the Act through the prohibition against destruction or adverse modification of critical habitat with regard to actions carried out, funded, or authorized by a Federal agency. Section 7 also requires conferences on Federal actions that are likely to result in the destruction or adverse modification of critical habitat. In our regulations at 50 CFR 402.02, we define destruction or adverse modification as “ * * *the direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical.” Aside from the added protection that may be provided under section 7, the Act does not provide other forms of protection to lands designated as critical habitat. Because consultation under section 7 of the Act does not apply to activities on private or other non-Federal lands that do not involve a Federal nexus, critical habitat designation would not afford any additional protections under the Act against such activities.

Section 7(a)(2) of the Act requires that Federal agencies, including the Service, must ensure that actions they fund, authorize, or carry out do not destroy or adversely modify critical habitat to the extent that the action appreciably diminishes the value of the critical habitat for the survival and recovery of the species. Individuals, organizations, States, local governments, and other non-Federal entities are affected by the designation of critical habitat only if their actions occur on Federal lands, require a Federal permit, license, or other authorization, or involve Federal funding.

Under section 7(a) of the Act, Federal agencies, including the Service, evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is designated or proposed. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) and regulations at 50 CFR 402.10 requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a proposed species or result in destruction or adverse modification of proposed critical habitat. Conference reports provide conservation recommendations to assist the agency in eliminating conflicts that may be caused by the proposed action. The conservation recommendations in a conference report are advisory.

We may issue a formal conference report if requested by a Federal agency. Formal conference reports on proposed critical habitat contain a biological opinion that is prepared according to 50 CFR 402.14, as if critical habitat were designated. If such designation occurs, we may adopt the formal conference report as a biological opinion, if no substantial new information or changes in the action alter the content of the opinion (see 50 CFR 402.10(d)).

When a species is listed or critical habitat is designated, section 7(a)(2) requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with us. Through this consultation, we would advise the agencies whether the permitted actions would likely jeopardize the continued existence of the species or destroy or adversely modify critical habitat.

When we issue a biological opinion concluding that a project is likely to result in the destruction or adverse modification of critical habitat, we also provide reasonable and prudent alternatives to the project, if any are identifiable. Reasonable and prudent alternatives are defined at 50 CFR 402.02 as alternative actions identified during consultation that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that the Director believes would avoid the likelihood of jeopardizing the continued existence of listed species or resulting in the destruction or adverse modification of critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.

Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where critical habitat is subsequently designated and the Federal agency has retained discretionary involvement or control over the action or such discretionary involvement or control is authorized by law. Consequently, some Federal agencies may request reinitiation of consultation or conferencing with us on actions for which formal consultation has been completed, if those actions may affect designated critical habitat or adversely modify or destroy proposed critical habitat.

Activities on private or State lands requiring a permit from a Federal agency, such as a permit from the U.S. Army Corps of Engineers (Corps) under section 404 of the Clean Water Act (33 U.S.C. 1344 et seq.), or a section 10(a)(1)(B) permit from the Service, or some other Federal action, including funding (e.g., from the Federal Highway Administration or Federal Emergency Management Agency) are also subject to the section 7 consultation process. Federal actions not affecting listed species or critical habitat, and actions on non-Federal lands that are not federally funded, authorized, or permitted do not require section 7 consultation. While efforts were made to exclude existing features and structures, such as buildings, roads, and other such developed features not containing primary constituent elements, due to mapping constraints not all such features were excluded. Federal actions limited to these areas would not trigger a section 7 consultation, unless they affect the species and/or the primary constituent elements in adjacent critical habitat.

To properly portray the effects of critical habitat designation, we must first compare the section 7 requirements for actions that may affect critical habitat with the requirements for actions that may affect a listed species. Section 7 prohibits actions funded, authorized, or carried out by Federal agencies from jeopardizing the continued existence of a listed species or destroying or adversely modifying the listed species' critical habitat. Actions likely to “jeopardize the continued existence” of a species are those that would appreciably reduce the likelihood of the species' survival and recovery. Actions likely to “destroy or adversely modify” critical habitat are those that would appreciably reduce the value of critical habitat for the survival and recovery of the listed species.

Common to both definitions is an appreciable detrimental effect on both survival and recovery of a listed species. Given the similarity of these definitions, actions likely to destroy or adversely modify critical habitat would almost always result in jeopardy to the species concerned, particularly when the area of the proposed action is occupied by the species concerned. Designation of critical habitat in areas known to be occupied by Sidalcea oregana var. calva, and areas where the species is detected in surveys at the time of the action, is not likely to result in a significant regulatory burden above that already in place due to the presence of the listed species. For some previously reviewed actions, in instances where critical habitat is subsequently designated, and in those cases where activities occur on designated critical habitat where Sidalcea oregana var. calva is not found at the time of the action, an additional section 7 consultation with the Service not previously required may be necessary for actions funded, authorized, or carried out by Federal agencies.

Section 4(b)(8) of the Act requires us to briefly describe and evaluate in any proposed or final regulation that designates critical habitat those activities involving a Federal action that may adversely modify such habitat or that may be affected by such designation. When determining whether any of these activities may adversely modify critical habitat, we base our analysis on the effects of the action on the entire critical habitat area and not just on the portion where the activity will occur. Adverse effects on constituent elements or segments of critical habitat generally do not result in an adverse modification determination unless that loss, when added to the environmental baseline, is likely to appreciably diminish the capability of the critical habitat to satisfy essential requirements of the species. In other words, activities that may destroy or adversely modify critical habitat include those that alter the primary constituent elements (defined above) to an extent that the value of critical habitat for both the survival and recovery of the Sidalcea oregana var. calva is appreciably diminished.

Activities that, when carried out, funded, or authorized by a Federal agency, may affect critical habitat and require that a section 7 consultation be conducted include, but are not limited to:

(1) Damming, water diversion, channelization, excess groundwater pumping, repair and replacement of culverts, or other actions that appreciably reduce the hydrologic function and surface area of rivers, streams, seeps or springs;

(2) Timber harvesting and road construction that directly or indirectly affects the hydrology of sites harboring the species;

(3) Rural residential construction that includes concrete pads for foundations or the installation of septic systems where a permit under section 404 of the Clean Water Act would be required from the Corps;

(4) Activities that alter watershed characteristics in ways that would appreciably reduce groundwater recharge or alter natural flooding regimes necessary to maintain natural, dynamic wetland communities. Such activities may include manipulation of vegetation through timber harvesting, road construction, maintaining an unnatural fire regime either through fire suppression, or too frequent or poorly-timed prescribed fires, residential and commercial development, and grazing of livestock that changes fire frequency or otherwise degrades watershed values;

(5) Activities that appreciably degrade or destroy native wetland communities, such as livestock grazing, land clearing, harvesting of trees or other forest products, introducing or encouraging the spread of non-native plant species; and

(6) Activities that appreciably alter stream channel morphology such as sand and gravel mining, road construction, channelization, impoundment, watershed disturbances, off-road vehicle use, and inappropriate recreational uses.

Any of the above activities that appreciably diminish the value of critical habitat to the degree that they affect the survival and recovery of Sidalcea oregana var. calva may be considered an adverse modification or destruction of critical habitat. We note that such activities may also jeopardize the continued existence of the species.

If you have questions regarding whether specific activities will constitute destruction or adverse modification of critical habitat resulting from a Federal action, contact Ken Berg, Manager, Western Washington Office (see ADDRESSES section). Requests for copies of the regulations on listed wildlife, and inquiries about prohibitions and permits may be addressed to the U.S. Fish and Wildlife Service, Branch of Endangered Species, 911 N.E. 11th Ave, Portland, Oregon 97232 (telephone 503/231-2063; facsimile 503/231-6243).

Section 4(b)(2) of the Act requires us to designate critical habitat on the basis of the best scientific and commercial information available and to consider the economic and other relevant impacts of designating a particular area as critical habitat. We may exclude areas from critical habitat upon a determination that the benefits of the exclusions outweigh the benefits of specifying the areas as critical habitat. We cannot exclude the areas from critical habitat when the exclusion will result in the extinction of the species.

Economic effects caused by listing Sidalcea oregana var. calva as an endangered species and by other statutes are the baseline against which the effects of critical habitat designation are evaluated. The economic analysis must then examine the incremental economic effects and benefits of the critical habitat designation. Economic effects are measured as changes in national income, regional jobs, and household income. We made the draft economic analysis available for public review and comment as described in the “Summary of Comments” section of this document. The final analysis, which reviewed and incorporated public comments as appropriate, concluded that no significant additional economic impacts are expected from critical habitat designation above and beyond that already attributable to the listing of Sidalcea oregana var. calva under the Act and other statutes. The most likely economic effects of critical habitat designation are on activities funded, authorized, or carried out by a Federal agency.

We believe that any project that would adversely modify or destroy critical habitat for Sidalcea oregana var. calva would also jeopardize the continued existence of the species, and that reasonable and prudent alternatives to avoid jeopardizing the species would also avoid adverse modification of critical habitat. Thus, no significant additional regulatory burden or associated significant additional costs would accrue because of critical habitat above and beyond those attributable to the listing of Sidalcea oregana var. calva. Our economic analysis does recognize that there may be costs from delays associated with reinitiating completed consultations after the critical habitat designation is made final. There may also be economic effects due to the reaction of the real estate market to critical habitat designation, as real estate values may be lowered due to perceived increase in the regulatory burden. We believe these impacts will be short-term, however.

The economic analysis concludes that, over the next 10 years the section 7 costs attributable to the listing are not expected to exceed $10,000, and result from a new consultation between us, the USFS, and WDNR. Costs attributable to critical habitat designation are not expected to exceed $2,000 and result from a re-initiated consultation between the USFS and us. Private landowners should incur no additional costs resulting from critical habitat designation. This estimate is based on the existing consultation history with agencies in this area and increased public awareness regarding the actual impacts of critical habitat designation on land values. Therefore, we conclude that no, or minimal, significant incremental costs are anticipated as a result of the designation of critical habitat for Sidalcea oregana var. calva.

A copy of the final economic analysis and a description of the exclusion process with supporting documents are included in our administrative record and may be obtained by contacting our Western Washington Office (see ADDRESSES section).

In accordance with Executive Order (EO) 12866, this rule is a significant regulatory action and has been reviewed by the Office of Management and Budget (OMB).

(a) In the economic analysis, we determined that this rule will not have an annual economic effect of $100 million or more or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. Sidalcea oregana var. calva was listed as endangered on December 22, 1999. Since that time we have conducted, and will continue to conduct, formal and informal section 7 consultations with other Federal agencies to ensure that their actions will not jeopardize the continued existence of Sidalcea oregana var. calva.

Under the Act, critical habitat may not be adversely modified by a Federal agency action; critical habitat does not impose any restrictions on non-Federal persons unless they are conducting activities funded or otherwise sponsored or permitted by a Federal agency (see Table 2). Section 7 of the Act requires Federal agencies to ensure that they do not jeopardize the continued existence of the species. Based on our experience with the species and its needs, we believe that any Federal action or authorized action that could potentially cause an adverse modification of the proposed critical habitat would currently be considered as jeopardy to the species under the Act.

Accordingly, we do not expect the designation of areas as critical habitat within the geographical range of the species to have any incremental impacts on what actions may or may not be conducted by Federal agencies or non-Federal persons that receive Federal authorization or funding. Non-Federal persons who do not have a Federal sponsorship of their actions are not restricted by the designation of critical habitat.

(b) This rule is not expected to create inconsistencies with other agencies' actions. As discussed above, Federal agencies have been required to ensure that their actions do not jeopardize the continued existence of Sidalcea oregana var. calva since its listing in 1999. The prohibition against adverse modification of critical habitat is expected to impose few, if any, additional restrictions to those that currently exist. However, we will continue to review this proposed action for any inconsistencies with other Federal agency actions.

(c) This final rule will not significantly impact entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. Federal agencies are currently required to ensure that their activities do not jeopardize the continued existence of the species, and, as discussed above, we do not anticipate that the adverse modification prohibition (resulting from critical habitat designation) will have any incremental effects in areas of designated critical habitat.

(d) OMB has determined that this rule may raise novel legal or policy issues and, as a result, this rule has undergone OMB review.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities.

SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. The following discussion explains our determination.

We have examined this rule's potential effects on small entities as required by the Regulatory Flexibility Act, and have determined that this action will not have a significant economic impact on a substantial number of small entities.

As discussed in the economic analysis for this rulemaking and the preamble above, this rule is not expected to result in any significant restrictions in addition to those currently in existence for areas occupied by Sidalcea oregana var. calva and designated as critical habitat. As indicated in Table 1 (see Critical Habitat Designation section), we designated critical habitat on property owned by Federal, State and local governments, and private property, and identified the types of Federal actions or authorized activities that are of potential concern (Table 2). If these activities sponsored by Federal agencies within the designated critical habitat areas are carried out by small entities (as defined by the Regulatory Flexibility Act) through contract, grant, permit, or other Federal authorization, as discussed above, these actions are currently required to comply with the listing protections of the Act, and the designation of critical habitat is not anticipated to have any significant additional effects on these activities in areas of critical habitat occupied by the species. Designation of critical habitat in areas that are not known to be occupied by this species will also not likely result in a significant increased regulatory burden since the Corps of Engineers already requires review of projects involving wetlands because wetlands frequently contain listed species for which the Corps must consult with us under section 7. For actions on non-Federal property that do not have a Federal connection (such as funding or authorization), the current restrictions concerning take of the species remain in effect, and this rule will have no additional restrictions.

Therefore, we are certifying that this final designation of critical habitat is not expected to have a significant adverse impact on a substantial number of small entities. Thus, no regulatory flexibility analysis is necessary.

On May 18, 2001, the President issued an Executive Order (E.O. 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. Although this rule is a significant regulatory action under Executive Order 12866, it is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.):

(a) This rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. Small governments will not be affected unless they propose an action requiring Federal funds, permits, or other authorization. Any such activity will require that the Federal agency ensure that the action will not adversely modify or destroy designated critical habitat.

(b) This rule, will not produce a Federal mandate of $100 million or greater in any year, that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The designation of critical habitat imposes no obligations on State or local governments.

In accordance with Executive Order 12630, this rule does not have significant takings implications. A takings implication assessment is not required. As discussed above, the designation of critical habitat affects only Federal agency actions. The rule will not increase or decrease the current restrictions on private property concerning take of Sidalcea oregana var. calva. Due to current public knowledge of the species' protection, and the fact that critical habitat provides no additional incremental restrictions, we do not anticipate that property values will be affected by the critical habitat designation. While real estate market values may temporarily decline following designation, due to the perception that critical habitat designation may impose additional regulatory burdens on land use, we expect any such impacts to be short term.

In accordance with Executive Order 13132, the rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from and coordinated development of this critical habitat proposal with appropriate State resource agencies in Washington. The designation of critical habitat within the geographic range occupied by Sidalcea oregana var. calva imposes no additional restrictions to those currently in place and, therefore, has little incremental impact on State and local governments and their activities. The designation may have some benefit to these governments in that the areas essential to the conservation of the species are more clearly defined, and the primary constituent elements of the habitat necessary to the survival of the species are specifically identified. While making this definition and identification does not alter where and what federally sponsored activities may occur, it may assist these local governments in long-range planning (rather than waiting for case-by-case section 7 consultations to occur).

In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have designated critical habitat in accordance with the provisions of the Endangered Species Act. The rule uses standard property descriptions and identifies the primary constituent elements within the designated areas to assist the public in understanding the habitat needs of Sidalcea oregana var. calva.

This rule does not contain any information collection requirements for which OMB approval under the Paperwork Reduction Act is required. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid OMB Control Number.

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

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), E.O. 13175, and 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis.

We have determined that there are no Tribal lands essential for the conservation of Sidalcea oregana var. calva. Therefore, critical habitat for Sidalcea oregana var. calva has not been designated on Tribal lands.

A complete list of all references cited in this proposed rule is available upon request from the Western Washington Office (see ADDRESSES section).

The primary author of this final rule is Ted Thomas (see ADDRESSES section).

The Kootenai River population of the white sturgeon (Acipenser transmontanus) is 1 of 18 land-locked populations of white sturgeon known to occur in western North America. The Kootenai River originates in Kootenay National Park in British Columbia, Canada, then flows south into Montana, northwest into Idaho, then north through the Kootenai Valley back into British Columbia, where it flows through Kootenay Lake and joins the Columbia River at Castlegar, British Columbia. Kootenai River white sturgeon occur in Idaho, Montana, and British Columbia, and are restricted to approximately 270 river kilometers (km) (168 river miles (mi)) of the Kootenai River extending from Kootenai Falls, Montana, located 50 river km (31 mi) below Libby Dam, Montana, downstream through Kootenay Lake to Corra Lynn Dam at the outflow from Kootenay Lake in British Columbia.

Bonnington Falls, a natural barrier downstream of Kootenay Lake, has isolated the Kootenai River population of white sturgeon since the last glacial advance roughly 10,000 years ago (Apperson 1992). Approximately 45 percent of the species' range, based on river kilometers, is located within British Columbia. Apperson and Anders (1991) found that at least 36 percent of the sturgeon tracked during 1989 over-wintered in Kootenay Lake. They further believe that sturgeon do not commonly occur upstream of Bonners Ferry, Idaho, which includes most of the Kootenai River watershed in the United States.

The Kootenai River population of white sturgeon is threatened by factors including hydropower operations, flood control operations, poor recruitment, loss of habitat, and possibly, contaminants (water quality impacts). For more detailed discussions of the ecology of the Kootenai River population of white sturgeon, see the September 6, 1994, Federal Register notice listing this population as endangered (59 FR 45989), and the September 30, 1999, “Recovery Plan for the White Sturgeon (Acipenser transmontanus): Kootenai River Population” (U.S. Fish and Wildlife Service 1999). The final listing rule and the recovery plan incorporate the best available biological information on Kootenai River white sturgeon.

Although the Service, in cooperation with other agencies, has gained important life history information during the 7 years since listing the species, considerable uncertainty remains in accurately delineating critical habitat for the Kootenai River population of white sturgeon. However, we rely on the best currently available information, including our 1999 recovery plan for the species, to designate critical habitat; we will now summarize the recent findings and remaining areas of uncertainty. Information being gathered now and in the future may require substantially amending this rule, the associated analyses of impacts, and any recommendations under section 7 of the Act.

In 1997, Paragamian et al. (1997) estimated that there may be 1,468 adult sturgeon remaining in the Kootenai River population, with a male-to-female ratio of 1.7:1, or about 539 females. With 7 percent of these females reproductively active in a given year (Apperson and Anders 1991), and an assumed average of 100,000 eggs per female, there may be as many as 3.8 million eggs released on average annually. To increase the probability of survival of fertilized eggs, the U.S. Army Corps of Engineers (COE) has provided various augmentation flows from Libby Dam. However, during the last 10 years of intensive monitoring, only one hatching fry has been found, and no free-swimming larvae or young-of-the-year have been captured. To date, only 17 juvenile sturgeon have been captured that can be associated with the experimental augmentation flows between 1991 and 1997. Because of sampling gear limitations, the success of sturgeon recruitment during the 1998 and 1999 augmentation flows cannot be assessed at this time. Considering the extent of occupied habitat in the United States and Canada, we believe that we have not yet accounted for other naturally recruited sturgeon from these same year classes that are present in the system. However, because of the high incidence of recapture of marked juvenile sturgeon in this system, the number of additional juvenile sturgeon is believed to be small.

There is evidence that very high levels of mortality of sturgeon eggs and sac fry are occurring annually. While we anticipate high levels of mortality at early life stages of a highly fecund species such as the Kootenai River white sturgeon, during 10 years of intensive monitoring we have never captured a free-swimming larvae or young-of-the-year sturgeon, and have captured a total of only 17 juveniles. This suggests exceptionally high levels of mortality are occurring at the sites now being used for spawning, egg incubation, and yolk sac fry development.

White sturgeon are broadcast spawners that release adhesive eggs which then sink to the river bottom (Stockley 1981, Brannon et al. 1984). In the lower Columbia River, most sturgeon eggs are sheltered by attaching themselves and incubating on rocky substrate near the spawning site (Parsley et al. 1993). Rocky substrates also provide cover for yolk sac larvae before they become free-swimming. However, in the Kootenai River, most of the current sturgeon spawning sites are over sandy substrate, and most eggs are found drifting along the river bottom covered with fine sand particles (Paragamian et al. in press). Recently, U.S. Geological Survey (USGS) geologists have analyzed core samples from the river bed and identified a “buried gravel/cobble geomorphic reach” throughout the reach of river from Bonner's Ferry downstream to the mouth of Deep Creek (Gary Barton, USGS, pers. comm. 2001). Purposes of this ongoing study are to determine the conditions that may have caused this gravel/cobble substrate to be buried, and when this may have occurred.

Through 10 years of monitoring, we have determined that 10 degrees Celsius (50 degrees Fahrenheit) is the optimum temperature for spawning for this species. When significant sturgeon recruitment last occurred in the Kootenai River (in the year 1974), and when preferred spawning temperatures were near 10 degrees Celsius, the following conditions were recorded: base flows of 40,000 cfs (1,120 cubic meters per second (cms)), peak flows of 55,000 cfs (1,540 cms), and a water surface elevation at Bonners Ferry of 1,765.5 ft (538.5 m) above sea level while at peak flows. We do not know the locations or the substrate composition of the spawning sites selected by adults under these 1974 conditions. The more extreme flow events common in the unregulated Kootenai River prior to impoundment may have caused gravel to be exposed within the spawning area. For example, the flood of record (1894) at Bonners Ferry, Idaho, was estimated to have been 157,000 cfs (4,396 cms), and peak flows in the range of 70,000 cfs (1,960 cms) were not unusual prior to construction of Libby Dam, which became fully operational in 1975. These flow, water surface elevation, and temperature conditions have not all been replicated at one time since 1974.

In the Kootenai River, spawning has not resulted in significant levels of recruitment, and it is unclear whether this is due to: (1) The current spawning site selection is a predominant behavioral response to changed river velocities and depths from the operations of Libby Dam, which may be causing the sturgeon to spawn primarily at new sites below the confluence with Deep Creek, about 3 river miles below Bonners Ferry, with unsuitable sandy riverbed substrates; or (2) the substrate at historic spawning sites has been altered by the operations of Libby Dam that have greatly reduced peak flood flows and associated stream energy. In turn, this may be causing rocky substrate, otherwise suitable for egg incubation and sac fry development, to be covered with sand. Since intensive monitoring began 10 years ago, there is evidence that some sturgeon in spawning condition enter the reach of river between Bonner's Ferry and the mouth of Deep Creek each year, but few have remained to spawn there.

Suitable water and sediment quality are necessary for viability of early life stages of Kootenai River white sturgeon, including both incubating eggs and yolk sac larvae, and normal breeding behavior. In 1992, Apperson documented elevated levels of copper in both Kootenai River sediments and sturgeon oocytes (the eggs before maturation), and found low levels of the polychlorinated biphenyl Arochlor 1260 in river water. Because offspring of wild sturgeon captured and spawned in the hatchery appeared to survive and develop normally on filtered hatchery water, the question regarding quality of the river habitat remains. Subsequent studies of biota and survival (egg and larvae) have continued the concern as to the role water and sediment quality is playing in the lack of recruitment to the sturgeon population. Although most sturgeon eggs released in the Kootenai River are not believed to live long enough to hatch into larvae and begin feeding, various constituent nutrients trapped in Lake Koocanusa, above Libby Dam, including nutrients, nitrogen, and phosphorus, may affect the food base of those larvae that do hatch. The operations of Libby Dam can affect water temperatures in the spawning reach, especially during intermediate and low water years. Water temperature may affect spawning behavior. Optimum spawning temperature is near 10 degrees Celsius, and sudden drops of 2 to 3 degrees Celsius cause males to become reproductively inactive. Water and sediment quality and the effects of contaminants on sturgeon recruitment remain an area of concern and uncertainty.

Researchers with the USGS are conducting a study of possible changes in riverbed substrate and water depths in the Kootenai River from Kootenay Lake, British Columbia, to above Bonners Ferry, Idaho, which may have resulted from the last 26 years of operations at Libby Dam. Further, there is an ongoing study involving the releases of large numbers (over 100,000) of four-day-old, hatchery-reared, yolk sac larvae over both sandy and rocky substrates in the Kootenai River, which is also intended to address uncertainties involving the sturgeon population's riverbed substrate needs.

Federal action on the Kootenai River population of white sturgeon began on November 21, 1991, when we included this population as a category 1 candidate species in the Notice of Animal Candidate Review (56 FR 58804), based on field studies conducted by the Idaho Department of Fish and Game. Category 1 candidate species are taxa for which the Service has on file enough substantial information on biological vulnerability and threats to propose them for endangered or threatened status. On June 11, 1992, the Service received a petition from the Idaho Conservation League, North Idaho Audubon, and the Boundary Backpackers to list the Kootenai River population of white sturgeon as threatened or endangered under the Act. The petition cited the lack of natural flows affecting juvenile recruitment as the primary threat to the continued existence of the wild sturgeon population. Pursuant to section 4(b)(A) of the Act, the Service determined that the petition presented substantial information indicating that the requested action may be warranted, and published this finding in the Federal Register on April 14, 1993 (58 FR 19401). A proposed rule to list the Kootenai River population of white sturgeon as endangered was published on July 7, 1993 (58 FR 36379), with a final rule following on September 6, 1994 (59 FR 45989).

In the September 6, 1994, final rule listing the Kootenai River population of white sturgeon as endangered (59 FR 45989), we stated that the designation of critical habitat was not determinable. As identified in the final listing determination, the primary threat to this species involves effects of the greatly altered natural hydrograph in the Kootenai River downstream of and beginning with the operations of Libby Dam in 1975. Adaptive management involving flow augmentation and monitoring during the last six years has indicated that this threat is most crucial during the first year of life, especially the first three weeks of life of the sturgeon (fertilized egg through free-swimming larvae). Biological factors relevant to the species' early life stage habitat needs are discussed in the “Primary Constituent Elements” section of this final rule.

Section 4(a)(3) of the Act and its implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)) state that designation of critical habitat is not determinable if information is not sufficiently well known to permit identification of an area as critical habitat. Our regulations (50 CFR 424.12(a)(1)) also state that designation of critical habitat is not prudent when one or both of the following situations exist: (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (2) such designation of critical habitat would not be beneficial to the species.

At the time of listing, we found critical habitat not determinable because the information necessary to perform the required impacts analyses of such a designation was lacking. We believed there was insufficient biological information to accurately delineate the habitat essential to the species, and, in the absence of this delineation, the required analysis of impacts could not be completed accurately. In addition, specific areas of critical habitat could not be identified without additional information on the life history and habitat requirements of the sturgeon. Biological information needs then identified by the Service included information concerning specific river reaches or areas necessary for spawning, reproduction, and rearing of offspring; and water quality, temperature, and velocity required to meet the needs of various life history stages (e.g., spawning, early rearing, and juvenile migration).

We published a final Recovery Plan on September 30, 1999 (U.S. Fish and Wildlife Service 1999). The recovery strategy identified in this recovery plan emphasized the importance of reestablishing successful, natural spawning of Kootenai River white sturgeon, minimizing the loss of genetic variability, and successfully mitigating the biological and physical habitat changes caused by human development within the Kootenai River basin.

On June 30, 1999, the Center for Biological Diversity filed a complaint on the Service's failure to designate critical habitat for the Kootenai River population of white sturgeon. As part of a court decision of August 30, 2000, in Center for Biological Diversity v. Bruce Babbitt, Secretary of the Department of the Interior, and the United States Fish and Wildlife Service, C99-3202 SC, we entered into a court-approved settlement agreement to submit a proposed rule for designation of critical habitat for the Kootenai River population of white sturgeon to the Federal Register by December 15, 2000. The proposed rule for designation of critical habitat was published on December 21, 2000 (65 FR 80698). The public comment period on the proposed rule was open from December 21, 2000, until February 20, 2001. On April 26, 2001, we announced the availability of the draft economic analysis and reopened the public comment period (66 FR 20962). The second public comment period closed on May 29, 2001.

Critical habitat is defined in section 3(5)(A) of the Act as: (i) the specific areas within the geographic area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection; and (ii) specific areas outside the geographic area occupied by a species at the time it is listed, upon determination that such areas are essential for conservation of the species. The term “conservation” as defined in section 3(3) of the Act means “to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary” (i.e., the species is recovered and removed from the list of endangered and threatened species). Section 3 of the Act further states that, except where determined by the Secretary of the Interior, critical habitat shall not include the entire geographic area which can be occupied by threatened or endangered species. In addition, critical habitat shall not be designated in foreign countries (50 CFR 424.12 (h)).

Section 4(b)(2) of the Act requires us to designate critical habitat on the basis of the best scientific and commercial information available, and to consider the economic and other relevant impacts of designating a particular area as critical habitat. We may exclude areas as critical habitat upon a determination that the benefits of such exclusions outweigh the benefits of specifying such areas as critical habitat. However, we cannot exclude areas from critical habitat when the exclusion will result in the extinction of the species.

In order to be included in a critical habitat designation, the habitat must first be “essential to the conservation of the species.” Critical habitat designations identify, to the extent known using the best scientific and commercial data available, habitat areas that provide essential life cycle needs of the species (i.e., areas on which are found the primary constituent elements, as defined at 50 CFR 424.12(b)).

When we designate critical habitat at the time of listing, as required under section 4 of the Act, or under short court-ordered deadlines, we may not have the information necessary to identify all areas which are essential for the conservation of the species. Nevertheless, we are required to designate those areas we know to be critical habitat, using the best information available to us.

Within the geographic area of the species, we will designate only currently known essential areas. Essential areas should already have the features and habitat characteristics that are necessary to sustain the species. We will not speculate about what areas might be found to be essential if better information became available, or what areas may become essential over time. If the information available at the time of designation does not show that an area provides essential life cycle needs of the species, then the area should not be included in the critical habitat designation. Within the geographic area of the species, we will not designate areas that do not now have the primary constituent elements, as defined at 50 CFR 424.12(b), that provide essential life cycle needs of the species.

Our regulations state that, “The Secretary shall designate as critical habitat areas outside the geographic area presently occupied by the species only when a designation limited to its present range would be inadequate to ensure the conservation of the species.” (50 CFR 424.12(e)). Accordingly, we do not designate critical habitat in areas outside the geographic area occupied by the species unless the best scientific and commercial data demonstrate that the unoccupied areas are essential for the conservation needs of the species.

Our Policy on Information Standards Under the Endangered Species Act, published in the Federal Register on July 1, 1994 (59 FR 34271), provides criteria, establishes procedures, and provides guidance to ensure that our decisions represent the best scientific and commercial data available. It requires our biologists, to the extent consistent with the Act and with the use of the best scientific and commercial data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When determining which areas are critical habitat, a primary source of information should be the listing package for the species. Additional information may be obtained from a recovery plan, articles in peer-reviewed journals, conservation plans developed by states and counties, scientific status surveys and studies, and biological assessments, unpublished materials, and expert opinion or personal knowledge.

Critical habitat provides non-regulatory benefits to the species by informing the public and private sectors of areas that are important for species recovery and where conservation actions would be most effective. Designation of critical habitat can help focus conservation activities for a listed species by identifying areas that contain the physical and biological features that are essential for conservation of that species, and can alert the public as well as land- and water-managing agencies to the importance of those areas. Critical habitat also identifies areas that may require special management considerations or protection, and may help provide protection to areas where significant threats to the species have been identified or help to avoid accidental damage to such areas.

In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited independent expert opinions from four persons who are familiar with this species to peer-review the proposed critical habitat designation. Two of these experts provided us with a written response generally supporting the designation based on the best available information. They also provided additional information that we have incorporated into the rule.

Both reviewers suggested that with additional information there may be a need to modify or expand critical habitat in the future. One reviewer suggested expansion of critical habitat upstream to include gravel/cobble substrates that may be used for sturgeon spawning under exceptional runoff conditions in the future. Our detailed response to this suggestion is included in the “Summary of Comments and Recommendations” section of this rule.

In accordance with section 3(5)(A)(i) of the Act and regulations in 50 CFR 424.12, in determining which areas to designate as critical habitat, we must consider those physical and biological features (primary constituent elements) essential to the conservation of the species, and which may require special management considerations and protection. These physical and biological features include but are not limited to the following: space for individual and population growth, and for normal behavior; food, water, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing of offspring; and, habitats that are protected from disturbance or are representative of the historical geographical and ecological distributions of a species.

The important habitat features that provide for breeding and rearing of offspring through the free-swimming larvae stage include: water temperatures, depths, and flows sufficient to trigger sturgeon breeding, and water volumes and substrates sufficient to provide cover and shelter to incubating eggs and yolk sac larvae.

We have determined the primary constituent elements of critical habitat for the Kootenai River population of white sturgeon from studies of their habitats, life history, and population biology described and referenced above. Kootenai River flows may affect the sturgeon in two ways—flows may affect normal breeding behavior, including site selection, or alter the riverbed substrate, which may affect survival of eggs and cover for yolk sac larvae. Flows may also affect the efficiency of predators to locate eggs and sac fry larvae. The four primary constituent elements of Kootenai River sturgeon critical habitat are:

1. A flow regime that creates a hydrologic profile characterized by flow magnitude, timing, and velocity, and water depth and quality (including temperatures) necessary for normal behavior involving breeding site selection, breeding and fertilization, and cover for egg incubation and yolk sac fry development.

2. A flow regime that creates a hydrologic profile characterized by water of sufficient duration and magnitude to restore or maintain riverbed substrate necessary for attachment and shelter of incubating eggs and cover for yolk sac fry in inter-gravel spaces.

3. A flow regime that creates a hydrologic profile characterized by flow magnitude, time, velocity, depth, and duration necessary for the normal behavior of adult and juvenile sturgeon.

4. Water and sediment quality necessary for normal behavior, including breeding behavior, and viability of all life stages of the Kootenai River white sturgeon, including incubating eggs and yolk sac larvae.

The area we are designating as critical habitat for the Kootenai River population of white sturgeon provides the above constituent elements and requires special management considerations or protection to ensure their contribution to the species' conservation.

Based on the best available information, we designate the following area as critical habitat for the Kootenai River population of white sturgeon: that portion of the Kootenai River within Boundary County, Idaho, from river kilometer 228 (about river mile 141.4, below Shorty's Island) to river kilometer 246 (about river mile 152.6, above the Highway 95 Bridge at Bonners Ferry, Idaho). The lateral extent of critical habitat is up to the ordinary high-water lines (as defined by the COE in 33 CFR 329.11) on each bank of the Kootenai River within this 18-kilometer (11.2-mile) reach.

The reach of the Kootenai River designated as critical habitat lies within the ordinary high-water lines as defined for regulatory purposes (33 CFR 329.11). Upon statehood in 1890, the State of Idaho claimed ownership of the bed of the Kootenai River and its banks up to ordinary high-water lines. Numerous private-, public-, and tribally-owned parcels abut these State-owned riverbed/banks, including lands managed by the Service at the Kootenai National Wildlife Refuge, and trust lands managed by the Kootenai Tribe of Idaho.

Based upon early U.S. Forest Service (USFS) maps from 1916, USGS maps from 1928, and the confining effects of the private levees completed by the COE in 1961, it appears that within this reach of the Kootenai River the ordinary high-water lines originally delineating State lands are essentially unchanged. Because of the scales of the available maps, it is possible that minor river channel changes have occurred since statehood, and that some small portions of private lands now occur within the ordinary high-water lines. However, we understand that most of the lands where these changes may have occurred lie within the flowage and seepage easements purchased by the Federal Government under Public Law 93-251, section 56, passed in 1974. In addition, when the river meanders, the “government lot” or parcel owners abutting State-owned riverbed/banks may request parcel boundary adjustments to the new ordinary high-water line, and corresponding adjustments in taxable acreage. Although the elevations of ordinary high water may have been lowered by the operations of Libby Dam since 1974, the lateral extent of the State-owned riverbed/banks along the steep levees may be closely approximated today through the COE's definition of ordinary high-water line cited above. Thus, we believe the land we have designated as critical habitat is within lands owned by the State of Idaho.

Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that may eventually be determined to be necessary for the recovery of the species. For these reasons, all should understand that critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery. Areas outside the critical habitat designation will continue to be subject to conservation actions that may be implemented under section 7(a)(1), and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard and the section 9 take prohibition. We anticipate that federally funded or assisted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best information available at the time of the designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome.

Critical habitat receives regulatory protection only under section 7 of the Act through the prohibition against destruction or adverse modification of critical habitat with regard to actions carried out, funded, or authorized by a Federal agency. In our regulations at 50 CFR 402.02, we define destruction or adverse modification as “* * * the direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical.” Aside from the added protection that may be provided under section 7, the Act does not provide other forms of protection to areas designated as critical habitat. Because consultation under section 7 of the Act does not apply to activities on private or other non-Federal lands that do not involve a Federal nexus, critical habitat designation would not afford any additional protections under the Act against such activities.

Section 7(a) of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out do not destroy or adversely modify critical habitat to the extent that the action appreciably diminishes the value of the critical habitat for both the survival and recovery of the species. Individuals, organizations, State, Tribal, and local governments, and other non-Federal entities are affected by the designation of critical habitat only if their actions occur on Federal lands, require a Federal permit, license, or other authorization, or involve Federal funding. Thus, activities on Federal lands that may affect the Kootenai River white sturgeon or its critical habitat, if designated, will require section 7 consultation. Actions on private or State lands receiving funding or requiring a permit from a Federal agency also will be subject to the section 7 consultation process if the action may affect the species or its critical habitat. Federal actions not affecting the species or its critical habitat, as well as actions on non-Federal lands that are not federally funded or permitted, will not require section 7 consultation.

Federal agencies are required to evaluate their actions with respect to any species that is listed as endangered or threatened, and with respect to its designated critical habitat. Regulations implementing these interagency cooperation provisions of the Act are codified at 50 CFR part 402.

If we find a proposed agency action is likely to destroy or adversely modify the critical habitat, our biological opinion may include reasonable and prudent alternatives to the action that are designed to avoid destruction or adverse modification of critical habitat. Reasonable and prudent alternatives are defined at 50 CFR 402.02 as alternative actions that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that we believe would avoid destruction or adverse modification of critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative vary accordingly.

Regulations at 50 CFR 402.16 also require Federal agencies to reinitiate consultation in instances where we have already reviewed an action for its effects on listed species if critical habitat is subsequently designated and the Federal agency has retained discretionary involvement or control over the action or such discretionary involvement or control is authorized by law. Consequently, some Federal agencies may request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions may affect designated critical habitat.

Section 4(b)(8) of the Act requires us to briefly evaluate and describe in any proposed or final regulation that designates critical habitat those activities involving a Federal action that may adversely modify such habitat, or that may be affected by such designation. Activities that may destroy or adversely modify critical habitat include those that alter the primary constituent elements to an extent that the value of critical habitat for both the survival and recovery of the Kootenai River population of white sturgeon is appreciably reduced. We note that such activities may also jeopardize the continued existence of the species. A wide range of Federal activities may include land and water management actions of Federal agencies (e.g., Bonneville Power Administration, Natural Resources Conservation Service, Bureau of Indian Affairs, USFS, EPA, COE, and the U.S. Fish and Wildlife Service), and related or similar actions of other federally regulated projects (e.g., road and bridge construction or maintenance activities by the Federal Highway Administration; dredge and fill projects, sand and gravel mining, bank stabilization activities conducted by the COE; and NPDES permits authorized by the EPA). These activities may destroy or adversely modify critical habitat if they alter the primary constituent elements (defined above) to an extent that the value of critical habitat for both the survival and recovery of the Kootenai River population of white sturgeon is appreciably reduced. Activities that, when carried out, funded, or authorized by a Federal agency, may destroy or adversely modify critical habitat include, but are not limited to:

(1) Altering the flow regime within the critical habitat in ways that prevent the necessary conditions for breeding and fertilization. For example, flood control and hydroelectric operations and water release configuration limitations of Libby Dam may destroy or adversely modify critical habitat by altering habitat for normal breeding behavior, shelter for incubating eggs, and cover for yolk sac larvae.

(2) Altering the flow regime within the critical habitat in ways that prevent the necessary conditions for incubating eggs and developing yolk sac larvae. Flood control and hydroelectric operations combined with the water release configuration limitations of Libby Dam may destroy or adversely modify critical habitat necessary for incubation of eggs and development of yolk sac larvae by altering riverbed substrate composition through reduced bed load transport energy and unnatural distribution of stream bed sand and silt. Land management activities accelerating sediment releases from watersheds entering the Kootenai River below Libby Dam, and above or within critical habitat, may also destroy or adversely modify this critical habitat through increased deposition of sand and silt in the stream bed. Other actions, including channelization, levee reconstruction, stream bank stabilization, gravel removal, and road and bridge construction, may also affect critical habitat.

(3) Altering water chemistry. Possible actions include the release of chemicals or biological pollutants into the waters passing through the critical habitat from point sources or by dispersed releases (non-point sources).

These examples indicate the types of activities that will require consultation in the future and, therefore, that may be affected by critical habitat designation. These kinds of activities would also generally require consultation when they affect a listed species, irrespective of impacts to critical habitat. To properly portray the effects of critical habitat designation, we must first compare the section 7 requirements for actions that may affect critical habitat with the requirements for actions that may affect a listed species. Section 7 prohibits actions funded, authorized, or carried out by Federal agencies from jeopardizing the continued existence of a listed species or destroying or adversely modifying the listed species' critical habitat. Actions likely to “jeopardize the continued existence” of a species are those that would appreciably reduce the likelihood of the species' survival and recovery. Actions likely to “destroy or adversely modify” critical habitat are those that would appreciably reduce the value of critical habitat for the survival and recovery of the listed species. Common to both definitions is an appreciable detrimental effect on both survival and recovery of a listed species. Given the similarity of these definitions, actions likely to destroy or adversely modify critical habitat would almost always result in jeopardy to the species concerned, particularly when the area of the proposed action is occupied by the species concerned. As a result, we do not expect that designation of critical habitat in this area, occupied by the Kootenai River population of white sturgeon, will result in a regulatory burden substantially above that already in place, due to the presence of the already-listed species.

Federal actions that are found likely to destroy or adversely modify critical habitat (or to jeopardize the continued existence of the species) may often be modified, through development of reasonable and prudent alternatives, in ways that will remove the likelihood of destruction or adverse modification of critical habitat (or jeopardy). Project modifications may include, but are not limited to, adjustment in timing of projects to avoid sensitive periods for the species and its habitat; minimization of work and vehicle use in the wetted channel; avoidance of pollution; use of alternative material sources; sediment barriers; and use of best land management and construction practices.

If you have questions regarding whether specific activities will likely constitute destruction or adverse modification of critical habitat, contact the Supervisor, Upper Columbia River Fish and Wildlife Office (see ADDRESSES section). Requests for copies of the regulations on listed wildlife, and inquiries about prohibitions and permits may be addressed to the Division of Endangered Species, U.S. Fish and Wildlife Service, 911 NE 11th Avenue, Portland, Oregon 97232-4181 (telephone 503-231-6158; facsimile 503-231-6243).

We twice requested all interested parties to submit comments or information that might bear on the designation of critical habitat for Kootenai River white sturgeon (65 FR 80618 and 66 FR 20962). We contacted all appropriate State and Federal agencies, Tribes, county governments, conservation organizations, and other interested parties and invited them to comment. In addition, we published newspaper notices inviting public comment and announcing the public hearings in the following newspapers—Spokesman Review and Bonner County Daily Bee in Idaho, and The Western News (Libby) in Montana.

We held a public hearing on the proposed rule in Bonners Ferry, Idaho, on January 18, 2001. Transcripts of this hearing are available for inspection (see ADDRESSES section).

A total of 21 commenters responded, 13 in writing and 8 orally. One commenter supported critical habitat as proposed, five commenters were opposed, and the remaining commenters were neutral to designation of critical habitat. Ten of the commenters were interested in expansion of the economic analysis to address all additional impacts of having listed the Kootenai River white sturgeon under the Act. We have reviewed all comments received for substantive issues and new data regarding critical habitat and the Kootenai River population of white sturgeon. Repeated or very similar comments are combined into single comments and responses.

During the public comment periods, we also received numerous written and oral comments that involved matters related to our December 2000 jeopardy biological opinion on the operations of the Federal Columbia River Power System, but unrelated to the designation of critical habitat. Only those comments involving impacts of our previous biological opinions which are applicable to our discussion of the economic baseline are addressed here.

Issue 1: One commenter suggested that we should include the entire range of the sturgeon, 168 river miles, as critical habitat.

Our Response: This is beyond the scope and intent of designating critical habitat (50 CFR 424.12 (b and c)). We only designated the reach of the river that is essential to the conservation of the species. We do not believe that the entire river meets the definition of critical habitat. Critical habitat is defined in section 3(5)(A) of the Act (see the “Critical Habitat” section of this rule).

Issue 2: One commenter stated that all upstream and upgradient habitats up to the watershed divide should be included as critical habitat for the sturgeon. Three other commenters suggested expanding the area of critical habitat some unspecified distance upstream of Bonners Ferry, Idaho.

Our Response: By regulation, designation of critical habitat involves a definable site that is essential for its conservation (50 CFR 424.12 (b and c)) and may require special management. Exposed gravel substrates exist in the Kootenai River bed upstream of the area we have designated as critical habitat, and these appear suitable for sturgeon spawning and early-life-stage rearing. There are no barriers that preclude sturgeon access to this river reach. The modest experimental augmentation flows in 1996 and 1997 intended to attract spawning sturgeon to this area were successful. However, based on the absence of historic observations and 10 years of monitoring sturgeon spawning movements through radio tracking of adults and sampling for eggs and larvae, there is no evidence that sturgeon have ever used this reach of the Kootenai River for spawning or early-life-stage rearing.

We know peak runoff event river depths and stream energy necessary to transport bedload have been altered by the operations of Libby Dam. Prior to the operations of Libby Dam, peak flows occasionally exceeded 100,000 cubic feet per second (cfs), and the average annual peak discharge was approximately 75,000 cfs. Since Libby Dam became operational, the average annual peak has been reduced to approximately 35,000 cfs (U.S. Army Corps of Engineers 2001). New information supports the proposed designation because it indicates the gravel/cobble substrate does exist in the area that we proposed. USGS geologists have analyzed core samples of the riverbed, and identified a “buried gravel/cobble geomorphic reach” extending from the railroad bridge in Bonners Ferry downstream about to the confluence with Deep Creek, a distance of about 3 miles, and entirely within critical habitat (Gary Barton, USGS, pers. comm. 2001). The purpose of this ongoing study is to determine whether it is likely that this gravel/cobble substrate (that may be suitable for sturgeon spawning/incubation) has been buried under sand and silt by the reduction in peak flow events and the loss of stream energy (necessary to naturally transport sediment), which may have occurred since Libby Dam became operational. The USGS has recently agreed to expand their ongoing studies to determine if there have been changes in the geomorphology of this reach of the Kootenai River that may affect the sturgeon.

At this time we do not have sufficient information to warrant expansion of critical habitat upstream of the area now designated. We do not believe that designation of all upstream and upgradient habitats up to the watershed divide as critical habitat is essential to the conservation of the species.

Issue 3: One commenter stated that poor recruitment since the 1960's warrants expansion of critical habitat into more diverse habitats such as off-channel rearing sites.

Our Response: The need to evaluate the use of off-channel habitats is acknowledged in the recovery plan, and a feasibility study is under way to determine if larval and juvenile sturgeon will occupy a reconnected meander channel (U.S. Fish and Wildlife Service 1999). Most of the off-channel habitat was eliminated long before 1975 when recruitment failure was recorded. White sturgeon in other portions of the Columbia River basin continue to recruit without off-channel habitats. In addition, off-channel Kootenai River habitat on the Creston Wildlife Management Area, British Columbia, now support introduced largemouth bass, a potential predator of young of the year sturgeon, thus supporting the idea that off-channel habitat are not suitable for the sturgeon.

Issue 4: Two commenters stated that the sturgeon's decline has resulted from cumulative effects of large-scale watershed alteration. Watershed processes that support the sturgeon's life history requirements must be restored, or at least not further degraded to ensure the “conservation of the species.”

Our response: We acknowledge that there may be a variety of stressors, such as lack of turbidity, affecting constituent elements for sturgeon recruitment in addition to the substantially altered hydrograph since 1975, when Libby Dam became fully operational. These possible stressors are identified as study needs in the Recovery Plan (U.S. Fish and Wildlife Service 1999). However, at this time we have no compelling scientific information on any additional stressors that would warrant expansion of critical habitat.

Issue 5: Libby Dam should be decommissioned or converted to a “run-of-the-river” project. Reestablishment of a natural regime with associated stream functions is necessary to preclude adverse modification of critical habitat.

Our Response: Our recommendations in the 1995 and 2000 jeopardy biological opinions for Kootenai River white sturgeon have been focused on incremental reestablishment of the physical and biological features essential to the conservation of the species through changes in the operations of Libby Dam, including modified flood control procedures that allow water storage for the sturgeon and other listed fish, increased release capacity at Libby Dam, water temperature management, and restoration of channel capacity near Bonners Ferry through levee repairs (U.S. Fish and Wildlife Service 1995 and 2000). The intent of our recommendations is to modify operations of the Libby Project, as necessary, within its originally authorized purposes to conserve the sturgeon.

Issue 6: One commenter asked what critical habitat would do for the sturgeon and whether the biological opinion will be amended.

Our Response: Our December 2000 jeopardy biological opinion involving the operations of the Libby Project for the next 10 years is based on the same biological information used in this designation of critical habitat (U.S. Fish and Wildlife Service 2000). The reasonable and prudent alternatives in this biological opinion were provided to the action agencies (Corps of Engineers (COE), Bonneville Power Administration, and Bureau of Reclamation) to avoid jeopardy to Kootenai River white sturgeon. Finalization of this critical habitat designation will require that our December 2000 biological opinion be amended; however, we expect that this will not result in additional requirements affecting operations of Libby Dam, as the existing measures adequately address critical habitat.

Issue 7: One commenter stated that the use of the ordinary high-water line to delineate the lateral margins of critical habitat is confusing, and asked for an explanation of why the ordinary high-water line was selected.

Our Response: The ordinary high-water line was selected because it has an established definition cited elsewhere in this document, and it generally corresponds to the property lines separating State-owned lands from other lands in this area. A common indicator of this line is a distinct change in vegetation such as a grass or tree line. During 10 years of monitoring, no sturgeon have been observed spawning along the banks or in the vegetation along the Kootenai River near what appears to be the ordinary high-water line, and no sturgeon egg has been recovered from the river bottom in less than 3 meters (m) (about 10 feet (ft)) of water. These observations suggest that the primary constituent elements and habitat deemed critical for sturgeon reproduction in the Kootenai River lie within the ordinary high-water lines, and are generally associated with the bed of the river rather than with riparian vegetation above the ordinary high-water lines.

Issue 8: The area delineated as critical habitat does not account for Kootenai River water surface elevations, which may be above the ordinary high-water lines during sturgeon augmentation flows, and this may impact private property adjacent to State lands along the area of critical habitat and elsewhere along the Kootenai River.

Our Response: Water surface elevations above the ordinary high-water lines may occur based on our recommendations in the December 2000 biological opinion on the operations of the Federal Columbia River Power System, which includes operations of Libby Dam (U.S. Fish and Wildlife Service 2000). Similarly, water surface elevations may increase upstream and downstream of this 11.2-mile reach of the Kootenai River we are designating as critical habitat. The primary constituent elements are not known to be found in any of these adjacent areas. Thus, we do not consider lands higher in elevation and outside of the ordinary high-water lines to be critical habitat. Potential impacts of elevated river stages on private property above or beyond designated critical habitat and resulting from recommendations in our 2000 biological opinion are described as part of the baseline in the economics section of this rule.

Issue 9: One commenter stated that any private lands within the area proposed as critical habitat should be identified.

Our Response: We have determined that the bed and banks of the Kootenai River within the area designated as critical habitat that are below the ordinary high-water lines are owned entirely by the State of Idaho. We have made a written request to the State to verify this determination, but we have received no response (U.S. Fish and Wildlife Service 2001). No specific exceptions or in-holdings within these State-owned lands were identified during the public comment periods.

Issue 10: One commenter noted that there are many uncertainties about factors limiting sturgeon recruitment. The commenter went on to state that decisions, such as critical habitat designation, which may impact their community should be delayed until research is completed to obtain the best available scientific information.

Our Response: When we designate critical habitat at the time of listing, as required under section 4 of the Act, or under short court-ordered deadlines, we may not have the information necessary to identify all areas which are essential for the conservation of the species. Nevertheless, we are required to designate those areas we know to be critical habitat, using the best information available to us. While we may prefer to have additional information, sufficient information, including a recovery plan (Service, 1999), is available to support a critical habitat designation.

Issue 11: One commenter asked if local land owners would have to consult with the Service to maintain their levees or repair pump discharge facilities if these activities occur within critical habitat.

Our Response: If there is a nexus such as a Federal permit, a Federal activity, or if there is Federal funding, the involved Federal agency would be responsible for consultation with us. Critical habitat would be but another consideration during that consultation.

Issue 12: One commenter asked if activities such as boating or discharges permitted under the National Pollution Distribution Elimination System will be affected.

Our Response: No impact upon boating is anticipated, because the constituent elements of critical habitat for the species are not affected by boating. National Pollution Distribution Elimination System (NPDES) permits are issued by the U.S. Environmental Protection Agency (EPA), and are developed based on the Idaho state Water Quality Standards. NPDES permits control the pollutants released into waters of Idaho. These discharges may be from facilities such as municipal wastewater treatment plants, or from industrial discharges. Designation of critical habitat adds another consideration involving possible adverse modification of that habitat when we consult with Federal agencies on actions such as issuing NPDES permits. Through section 7 consultation, EPA will need to consider what pollutants may be in the discharge, how the pollutants compare with Idaho Water Quality Standards, and how those pollutants may affect Kootenai River white sturgeon, or the constituent elements of critical habitat. EPA provides a public comment and review period on any NPDES permits that are issued, so information on the effects of pollutants would be available at that time.

Issue 13: Ten commenters have requested that our economic analysis be expanded beyond the impacts of critical habitat to include all impacts of sturgeon listing and recovery throughout the Kootenai River basin.

Our Response: The Service has prepared an addendum to the critical habitat economic analysis, and included it in the final economic analysis. This addendum describes a baseline of positive and negative impacts in the Kootenai River basin associated with the listing as well as the impacts anticipated to be associated with critical habitat.

Issue 14: Three commenters expressed concerns that our recommendations in our biological opinion to increase release capacity from 25,000 to 35,000 cfs at Libby Dam may impact structures, wells, and sewage facilities, and may cause erosion of islands in the vicinity of Libby, Montana.

Our Response: The COE is initiating interagency studies and review under the National Environmental Policy Act which will determine the extent of any potential impacts associated with increasing releases from Libby Dam by 2004.

Issue 15: One commenter expressed concern over loss of recreation income associated with changes in operations of Lake Koocanusa.

Our Response: See the economics section of this rule. Our biological opinion recommends adoption of the COE's VarQ (Variable Flow) flood control procedures which will greatly increase the probability of Lake Koocanusa refill (McGrane 1999). In addition, we recommended that releases for sturgeon be based on the Montana Integrated Rule Curves (Marotz et al. 1999) meaning that there will be no augmentation for sturgeon during drought years such as this year (2001), and greater releases in exceptional runoff years like 1996 and 1997, when there is no difficulty refilling the reservoir. Relative to a best case model, the COE has estimated that with our biological opinion there may be a 2.3-ft reduction in average maximum water surface elevation of Lake Koocanusa, down to 2455.3 ft, and that may result in a 4 percent loss in visitor days on Lake Koocanusa (U.S. Army Corps of Engineers 1999). However, with the recently signed Libby Coordination Agreement, Lake Koocanusa may be held as much as 10 ft higher during August of some years (U.S. and Canadian Entities 1999). This increase in water surface elevation is expected to increase recreational use by about 12 percent. Losses in reservoir recreational use may be compensated for by increases in recreational use and associated commercialization of the Kootenai River below Libby Dam. This reach of the river supports a trophy rainbow trout fishery. Under our biological opinion for bull trout, minimum flows below Libby Dam will be increased by 50 to 125 percent during July and August, also increasing usable habitat for the rainbow trout population.

Issue 16: One commenter stated water released for the sturgeon will result in a loss of hydroelectric power generation.

Our Response: All water released to date for sturgeon flow augmentation has passed through the generators and produced power. In the future, the Federal action agencies may choose to use the spillway to provide some sturgeon augmentation flows. The COE will study this issue in the next few years, and determine if it can be done without damage to the spillway, or without impacting water quality downstream of Libby Dam. If the spillway is used, that water would not go through the turbines. However, the spillway would only be used when water elevations in Lake Koocanusa were high, so water would also likely be passed through the turbines at the same time, and power would still be generated. Therefore, we do not anticipate any significant change in hydroelectric power generation. As a consequence, and as noted later in this document, we feel this action will not have a significant effect on energy supply, distribution, or use, and so will comply with Executive Order 13211.

Issue 17: One person commented that during 1999 Libby Dam was operated only three days for power, and during the remainder of the year it was operated for fish.

Our Response: We are aware of no instance during 1999 when water passing through Libby Dam was not used to generate power. This includes the periods when releases were shaped for listed fish. The only way water passing through Libby Dam would not be used to generate power is if there were a spill, and that has not occurred since 1981, before any operations for listed fish began.

Issue 18: One person commented that while rapidly fluctuating water levels from load following may be the primary factor causing levee erosion through most of Kootenai Valley, peak flow events including sturgeon flows are the primary factor causing lateral erosion of the river bank and levee upstream of Bonners Ferry in the area of their property.

Our Response: The USGS is evaluating existing information on possible changes in channel configuration in the Kootenai River upstream of Bonners Ferry that may have occurred since Libby Dam became operational. We have asked them to investigate the possibility that reduced peak flows since Libby Dam became operational, and the resulting loss of energy to transport bed load, may have increased streambed gravel deposition, reduced channel capacity and reduced water depths above Bonners Ferry. Such changes may influence sturgeon spawning site selection. If this has occurred, the rate of lateral migration of the river and erosion of banks may also be affected. The effects of the operations of Libby Dam may be very different in the higher gradient reach of the Kootenai River above Bonners Ferry.

Issue 19: One person commented that the Service is asking for flows up to 60,000 cfs which equates to a stage of 1,764 ft at Bonners Ferry, and property owners may suffer a million and a half dollars worth of crop damages in the valley, mainly from seepage.

Our Response: The 2000 biological opinion recommends release capacity at Libby Dam be increased from about 25,000 to 35,000 cfs, but specific flows for sturgeon are recommended annually, on an in-season adaptive management basis. This adaptive management approach considers the presence of sturgeon expected to spawn, attainable water temperatures, the stage of Kootenay Lake and its associated backwater effect, the duration of flows and seepage into agricultural lands, the extent of runoff entering the river below Libby Dam, and public safety based on levee condition (Service 2000). The highest flow coinciding with a sturgeon release was about 45,000 cfs on June 7, 1997. That release would have occurred in the absence of a specific recommendation for sturgeon because it was necessary to preclude a forced spill at Libby Dam and the possibility of an uncontrolled flood. Because of concern for flooding, the flow event was extended by the Corps of Engineers for 13 days, rather than the recommended 3 days (U.S. Fish and Wildlife Service 1999). The highest river stage at Bonners Ferry during this multipurpose release was 1,764.4 ft, which occurred at 3:00 a.m. on June 7, 1997. This was an unusual situation that was influenced by the cumulative back water effect of Kootenay Lake during an exceptionally high runoff year. Most sturgeon flows have been in the range of 27,000 to 40,000 cfs. As authorized, Libby Dam was to control a 100-year flood event (0.01 exceedance frequency) to 57,000 cfs at Bonners Ferry, based on information that the reconstructed 1894 flood had been an 85- to 100-year event (McGrane 1995, 1996). In 1999, with additional flow records through 1978 available to better define a 100-year flood event, the authorized control level during a 100-year event was estimated to be 62,000 cfs, which corresponds to an elevation or stage at Bonners Ferry of 1768.9 ft (McGrane 1999).

Presently, because some levee segments have not been well maintained, the COE has an operational policy to control the river to an elevation of 1,764 ft (a 10-year event or a 0.10 exceedance frequency), at Bonners Ferry when possible, and this corresponds to a flow of 53,000 cfs (McGrane 1999). This 1,764 ft was the average stage of the Kootenai River at Bonners Ferry for the entire month of June prior to the operations of Libby Dam (Army Corps of Engineers 2001). The average stage for the month of May was 1,761 ft. Although seepage from these average stages and durations may have regularly affected some lands above river mile 143 (Dion and Whitehead 1973), we are aware of no information that a reduction in seepage was an authorized purpose of the Libby Project. Seepage is typically among the consequential effects of large flood control projects, and any seasonal reduction in seepage was an ancillary benefit of the Libby Project. The baseline for economic analysis in this document will be those conditions related to seepage prior to our 1995 biological opinion, rather than conditions related to seepage prior to operations of Libby Dam, addressed under other authorities.

Issue 20: One commenter asked if the designation of critical habitat would result in flows greater than those which we have recommended in our December 2000 biological opinion.

Our Response: No. We have no new information which would warrant additional increases in flows.

In finalizing critical habitat for the Kootenai River white sturgeon, we reviewed the overall approaches to conservation of the species taken by local, State, Tribal, and Federal agencies in the U.S. and Canada and private individuals and organizations since the species' listing in 1994. We also solicited information from knowledgeable biologists and reviewed the available information pertaining to habitat requirements of the species. This final critical habitat designation described below constitutes our best assessment of the area essential for the conservation of the sturgeon, and is based on the best scientific and commercial information available. The area designated is currently within the range occupied by the species, and contains all of the primary constituent elements identified in the “Primary Constituent Elements” section. The area designated is entirely within the historic range of the species, and requires special management consideration and protection to ensure its contribution to the species' recovery.

In an effort to map areas essential to the conservation of the species, we used data on known Kootenai River sturgeon spawning and early-life-stage rearing areas. In the lower Columbia River, where white sturgeon continue to spawn successfully, egg incubation sites and yolk sac fry development sites are at or slightly downstream of spawning sites (Parsley et al. 1993). In the Kootenai River, eggs at all stages of development and one hatching yolk sac fry have been found at or downstream of the spawning sites. Since 1991, sturgeon eggs have been recovered in the Kootenai River between river kilometer 228 (river mile 141.4), below Shorty's Island (Paramagian et al. 1995), and river kilometer 246 (river mile 152.6), above the Highway 95 bridge at Bonner's Ferry, Idaho (Paragamian et al. in press). Although many of the eggs found were unattached and drifting along the river bottom, Paragamian et al. (in press) supports the assumption that the Kootenai River sturgeon egg collection sites are in the vicinity of the spawning sites. Further, since no other spawning sites have been identified in 10 years of monitoring, we believe these are the same sites where at least some successful egg incubation and yolk sac fry development has occurred, as evidenced by the 17 wild juveniles captured and aged to year classes within this same 10-year study period.

Existing structures within the critical habitat boundaries, such as highway and railroad bridges, do not contain primary constituent elements essential for sturgeon conservation, and therefore are not included in this critical habitat designation even though they are included within mapped critical habitat boundaries. Federal actions limited to those structures would not trigger a section 7 consultation, unless they affect the species and/or primary constituent elements in adjacent critical habitat.

The final designation of critical habitat has no changes from the proposed designation.

Economic effects caused by listing the sturgeon as a Federally protected endangered species, and by other statutes, are the baseline against which the effects of a critical habitat designation are evaluated. The economic analysis must then examine the incremental economic and conservation benefits and effects of the critical habitat designation. Economic effects are measured as changes in national income, regional jobs, and household income, when possible. An analysis of the designation of critical habitat for the sturgeon was prepared (Bioeconomics, Inc. 2001, under contract with Industrial Economics, Inc.) and made available for public review and comment (April 18, 2001, through May 29, 2001; 66 FR 20962).

An addendum to the draft economic analysis was prepared and its availability is noted below in the “Economic Analysis” section. This addendum includes additional baseline information associated with the listing of the sturgeon and subsequent section 7 consultations, responses to public comments on the draft economic analysis, and is consistent with the May 11, 2001, ruling by the U.S. Court of Appeals, Tenth Circuit.

The final analysis, which reviewed and incorporated public comments, concluded that no additional costs or benefits are estimated to accrue from the designation of critical habitat for the sturgeon. All estimated costs and benefits from either ongoing impacts of past section 7 consultations, or associated with anticipated future consultations are attributable to the listing requirements of the Act and not any additional requirements associated with critical habitat designation. These listing-related impacts are estimated to include less than $2,000 per year in additional costs of completing consultations involving the sturgeon. Additionally, it is estimated that up to approximately $300,000 per year of seepage-related crop damage resulting from all water sources may occur in the Kootenai Valley. However, there was not sufficient information available to segregate crop damage resulting specifically from Kootenai River seepage during sturgeon augmentation flows recommended under section 7 of the Act, from those crop damages resulting from seepage during other high river flows, or from those crop damages resulting from entirely different water sources. This estimate of seepage-related crop damage may be a high estimate depending on actual crop locations, and the flow levels and durations of future sturgeon-related river flows. Levee owners along the Kootenai River may also benefit from modified river flows (reduced hydroelectric load following) resulting from section 7 consultation that will lead to reduced erosion and maintenance costs on most privately owned levees along the river. The small (4 percent) estimated loss in visitor use days on Lake Koocanusa, due to releases for sturgeon, may be offset by increased summer lake levels resulting from the Libby Coordination Agreement between the U. S. and Canada, and also by improved recreational fishing opportunities below Libby Dam associated with increased and more stable instream flows during July and August.

A copy of the final economic analysis is included in our administrative record and may be obtained by contacting the U.S. Fish and Wildlife Service, Upper Columbia Fish and Wildlife Office, 11103 East Montgomery Drive, Spokane, Washington 99206, or at http://pacific.fws.gov/news/2001-60.htm.

In accordance with Executive Order (EO) 12866, this rule is a significant regulatory action and has been reviewed by the Office of Management and Budget (OMB).

(a) In the economic analysis, we determined that this rule will not have an annual economic effect of $100 million or more or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. The Kootenai River population of white sturgeon was listed as endangered on September 6, 1994. We have recently completed one formal section 7 consultation with the COE, Bonneville Power Administration, and the Bureau of Reclamation on operations of the Federal Columbia River Power System, in part, to ensure that their actions would not jeopardize the continued existence of the Kootenai River population of white sturgeon. Based on the proposed action, we issued a jeopardy biological opinion on the sturgeon in December 2000.

Under the Act, critical habitat does not impose any restrictions on non-Federal persons unless they are conducting activities funded or otherwise authorized by a Federal agency (see Table 1).

Section 7 of the Act requires Federal agencies to ensure that they do not jeopardize the continued existence of the species. Based upon our experience with the species and its needs, we conclude that any Federal action or authorized action that could potentially cause adverse modification of designated critical habitat would currently be considered as “jeopardy” under the Act. Accordingly, the designation of areas within the geographic range occupied by the Kootenai River population of white sturgeon does not have any incremental impacts on what actions may or may not be conducted by Federal agencies or non-Federal persons that receive Federal authorization or funding. Non-Federal persons that do not have a Federal “sponsorship” of their actions are not restricted by the designation of critical habitat, although they continue to be bound by the provisions of the Act concerning “take” of the species.

(b) This rule is not expected to create inconsistencies with other agencies' actions. As discussed above, Federal agencies have been required to ensure that their actions do not jeopardize the continued existence of the Kootenai River white sturgeon since its listing in 1994. The prohibition against adverse modification of critical habitat is expected to impose few, if any, additional restrictions to those that currently exist. However, we will continue to review this proposed action for any inconsistencies with other Federal agency actions.

(c) This final rule will not significantly impact entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. Federal agencies are currently required to ensure that their activities do not jeopardize the continued existence of the species, and, as discussed above, we do not anticipate that the adverse modification prohibition (resulting from critical habitat designation) will have any incremental effects in areas of designated critical habitat.

(d) OMB has determined that this rule will raise novel legal or policy issues and, as a result, this rule has undergone OMB review.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities.

SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. The following discussion explains our determination.

We have examined this rule's potential effects on small entities as required by the Regulatory Flexibility Act, and have determined that this action will not have a significant economic impact on a substantial number of small entities.

As discussed in the economic analysis for this rulemaking and the preamble above, this rule is not expected to result in any significant restrictions in addition to those currently in existence for areas occupied by the Kootenai River population of white sturgeon and designated as critical habitat. As indicated in Table 1, we identified the types of Federal actions or authorized activities that are of potential concern. If these activities sponsored by Federal agencies within the designated critical habitat areas are carried out by small entities (as defined by the Regulatory Flexibility Act) through contract, grant, permit, or other Federal authorization, as discussed above, these actions are currently required to comply with the listing protections of the Act, and the designation of critical habitat is not anticipated to have any significant additional effects on these activities in areas of critical habitat occupied by the species. For actions that have no Federal connection (such as funding or authorization), the current restrictions concerning take of the species remain in effect, and this rule will have no additional restrictions.

Therefore, we are certifying that this final designation of critical habitat is not expected to have a significant adverse impact on a substantial number of small entities. Thus, no regulatory flexibility analysis is necessary.

On May 18, 2001, the President issued an Executive Order (EO 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 final 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.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.):

(a) This rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. Small governments will be affected only to the extent that any programs having Federal funds, permits, or other authorized activities must ensure that their actions will not adversely affect the critical habitat. However, as discussed above, these actions are currently subject to equivalent restrictions through the listing protections of the species, and no further restrictions are anticipated in areas of occupied designated critical habitat.

(b) This rule will not produce a Federal mandate of $100 million or greater in any year, that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The designation of critical habitat imposes no obligations on State or local governments.

In the economic analysis, we determined the designation of critical habitat will not have a significant effect on a substantial number of small entities. As discussed under Regulatory Planning and Review above, this rule is not expected to result in any restrictions in addition to those currently in existence for areas of occupied critical habitat.

Under our economic analysis, we determined the designation of critical habitat will not cause: (a) any increases in costs or prices for consumers, individual industries, Federal, State, Tribal, or local government agencies, or geographic regions; or (b) any significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. As discussed above, we anticipate that the designation of critical habitat will not have any additional effects on these activities in areas of critical habitat occupied by the species.

In accordance with Executive Order 12630, this rule does not have significant takings implications, and a takings implication assessment is not required. This rule will not “take” private property. The designation of critical habitat affects only Federal agency actions. The rule will not increase or decrease the current restrictions on private property concerning take of the Kootenai River population of white sturgeon. Additionally, critical habitat designation does not preclude development of habitat conservation plans and issuance of incidental take permits. Non-Federal landowners in areas that are included in the designated critical habitat will continue to be able to make economic use of their property.

In accordance with Executive Order 13132, the rule does not have significant Federalism effects. A Federalism assessment is not required. The designation of critical habitat in areas currently occupied by the Kootenai River white sturgeon imposes no additional restrictions on state or private activities than those currently in place, and therefore has little incremental impact on State and local governments and their activities.

In keeping with Department of the Interior policy, we requested information from and coordinated development of this critical habitat designation with appropriate State resource agencies in Idaho. We also utilized information on critical habitat submitted by the State during the listing of the Kootenai River white sturgeon. The State now has representation on our recovery team for this species. Consequently, we will continue to coordinate this and any future designation of critical habitat with the appropriate State agency.

In accordance with Executive Order 12988, the Department of the Interior's Office of the Solicitor determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. The Office of the Solicitor will review the final determination. We have made every effort to ensure that this final determination contains no drafting errors, provides clear standards, simplifies procedures, reduces burden, and is clearly written such that litigation risk is minimized.

This designation does not contain any information collection requirements for which OMB approval under the Paperwork Reduction Act is required.

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

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951, E.O. 13175) and 512 DM 2, we understand that Federally recognized Tribes must be related to on a government-to-government basis. We support tribal measures that preclude the need for conservation regulations, and we provide technical assistance to tribes who wish assistance in developing and expanding tribal programs for the management of healthy ecosystems so that Federal conservation regulations, such as designation of critical habitat, on tribal lands are unnecessary.

The Presidential Memorandum of April 29, 1994, also requires us to consult with the tribes on matters that affect them, and section 4(b)(2) of the Act requires us to gather information regarding the designation of critical habitat and the effects thereof from all relevant sources, including the tribes. Recognizing a government-to-government relationship with tribes and our Federal trust responsibilities, we consulted representatives of the Kootenai Tribe of Idaho with regard to trust resources, tribal lands, or tribal rights that might be affected by the designation of critical habitat.

In our deliberations over this critical habitat designation, we identified possible effects to the Kootenai Tribe of Idaho or tribal resources. These include: (1) Effects of designation of critical habitat on State lands adjacent to tribal lands; and (2) the effects on tribal resources, such as water deliveries and aquatic resources such as the Kootenai River white sturgeon. The Kootenai Tribe of Idaho is directly involved in the conservation of the Kootenai River white sturgeon, and conducts a conservation aquaculture program. To do this, the Tribe diverts a small amount of water directly from the Kootenai River within the area of critical habitat. We do not anticipate any direct or indirect adverse effects to Tribal lands through management actions intended to enhance or maintain critical habitat on adjacent State of Idaho lands. However, we do anticipate beneficial effects to Tribal resources, including maintained water quality and continued conservation of the sturgeon, from the designation of critical habitat on adjacent non-tribal lands.

A complete list of all references cited in this designation is available upon request from the U.S. Fish and Wildlife Service, Upper Columbia Fish and Wildlife Office (see ADDRESSES section).

The primary author of this notice is Bob Hallock, U.S. Fish and Wildlife Service (see ADDRESSES section).