This final rule is issued under Marketing Agreement No. 97 and Marketing Order No. 948 (7 CFR part 948), both as amended, regulating the handling of Irish potatoes grown in Colorado, hereinafter referred to as the “order.” The order is authorized by the Agricultural Marketing Agreement Act of 1937, as amended, (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

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

This final rule increases exemptions to the handling regulation prescribed under the order. This rule exempts potatoes shipped for the purpose of experimentation and the manufacture or conversion into specified products from the grade, size, maturity, inspection and assessment requirements of the order. These exemptions were unanimously recommended by the Committee. This rule also clarifies the regulatory text by specifying that potatoes shipped for livestock feed, charity, and certified seed are exempt from assessment requirements.

Section 948.22 authorizes the issuance of regulations for grade, size, quality, maturity, and pack for any variety or varieties of potatoes grown in different portions of the production area during any period. Section 948.23 authorizes the issuance of regulations that modify, suspend, or terminate requirements issued under § 948.22 or to facilitate the handling of potatoes for special purposes. Section 948.24 requires adequate safeguards be prescribed to ensure that potatoes handled pursuant to § 948.23 enter authorized trade channels. Safeguard procedures for special purpose shipments are specified in §§ 948.120 through 948.125. Section 948.387 of the order's handling regulations establishes the grade, size, maturity, and inspection requirements for Area No. 3. The Committee's assessment rate is established under § 948.215.

At its meeting on December 14, 2000, the Committee unanimously recommended that potatoes shipped for the purpose of experimentation and the manufacture or conversion into specified products be exempt from the grade, size, maturity, and inspection requirements provided under the order’s regulations for Area No. 3. The Committee recommended that experimentation and the manufacture or conversion into specified products be added under 948.387(d) as special purpose shipments.

To apply for the exemption, handlers will obtain a Certificate of Privilege for handling such potatoes and furnish the Committee such information as it may require to track shipments, determine whether applicable requirements have been met, and verify whether proper disposition has occurred.

At a subsequent meeting on March 8, 2001, the Committee reconfirmed its earlier action and, in addition, unanimously recommended that shipments for livestock feed, charity, certified seed, and for the purpose of experimentation and the manufacture or conversion into specified products be exempt from assessment requirements. Shipments of potatoes for livestock feed, charity, and certified seed are specified as special purpose shipments and are exempt from grade, size, maturity, and inspection requirements.

Some producers and handlers within the production area are interested in developing new uses for fresh potatoes using experimental varieties and packs. The Committee also anticipates that some handlers may want to ship traditional varieties, or experimental varieties, for use in the manufacture or conversion into special products, or perform the manufacture or conversion themselves prior to shipment. Handlers are, for example, attempting to develop new special products such as fresh cut potatoes shipped in vacuum-sealed bags. Handlers have also expressed a desire to experiment with the shipment of potatoes of different varieties in the same container. Prior to this rule, this was not possible because the potatoes did not meet the minimum grade requirement that a particular lot of potatoes must have “similar” varietal characteristics.

The Committee strongly encourages innovation that could result in the development of new varieties, markets, or opportunities for the expanded use of fresh forms of potato products, such as fresh cut potatoes in vacuum-sealed bags, thus benefiting the Colorado potato industry. Some of the new varieties have irregular shapes or are small in size, and did not meet minimum order requirements. This prevented them from being shipped except under the minimum quantity exemption of 1,000 pounds specified in paragraph (f) of § 948.387. Thus, handlers were prevented from shipping larger quantities.

For the purpose of this rule, the term “manufacture or conversion into specified products” means the preparation of potatoes for market into products by peeling, slicing, dicing, applying material to prevent oxidation, or other means approved by the Committee, but not including other processing. Under the prior regulation, potatoes for manufacture or conversion into specified products were required to be inspected and certified as meeting the specified quality requirements prior to preparation for market.

Prior to this final rule, the handling regulations required that all potatoes shipped to fresh market, with the exception of those meeting minimum quantity and special purpose exemptions, be inspected and assessed. These regulations did not provide adequate relief for commercially viable shipments of non-traditional varieties, potatoes for experimentation, or the shipment of potatoes for the manufacture or conversion into products. This rule exempts such shipments and relieves handlers of this regulatory burden.

This relaxation of the Area No. 3 handling regulation is expected to encourage new product development that could lead to market expansion, benefiting producers, handlers, buyers, and consumers. By relaxing the handling requirements on traditional and experimental varieties and on new and innovative fresh potato products, additional opportunities should be available to increase the fresh utilization of Colorado potatoes.

The Committee also unanimously recommended that shipments of potatoes for livestock feed, charity, and certified seed potatoes be exempt from assessment requirements. This Committee recommendation was made with the intent of treating all special purpose shipments in the same manner. As explained previously, shipments to these fresh outlets are exempt from the grade, size, maturity, and inspection requirements. The order only regulates, however, the shipment of potatoes outside the State of Colorado. It is very uncommon for Area No. 3 potatoes to be shipped for livestock feed, charity, or certified seed outside of the State of Colorado. It is not expected that exempting such shipments from assessments will have the effect of increasing shipments. Thus, this rule is expected to have little impact on handlers or the Committee’s assessment income. And finally, this rule clarifies the handling regulation to indicate that special purpose shipments for canning, freezing, and “other processing” are exempt from assessments. Such shipments are exempt from regulation under federal marketing orders in conformity with an amendment to the Act (Public Law No. 92-233, Feb. 15, 1972).

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

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 13 handlers of Colorado Area No. 3 potatoes who are subject to regulation under the marketing order and approximately 31 producers of Colorado potatoes in the regulated area. Small agricultural service firms are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $5,000,000, and small agricultural producers are defined as those whose annual receipts are less than $750,000.

Based upon information provided by the Committee, all handlers of Area No. 3 potatoes have shipped under $5,000,000 worth of potatoes during the most recent season for which numbers are available. In addition, information reported by the National Agricultural Statistics Service was considered in determining the number of large and small producers by acreage, production, and producer prices. According to the information provided, the average yield per acre was 340 hundredweight, the average farm size was 53 acres, and the season average producer price was $5.95 per hundredweight for 1999 crop. This equates to average gross receipts to producers of approximately $107,200. Based on the foregoing, it can be concluded that all handlers and the majority of producers of Area 3 potatoes may be classified as small entities, excluding receipts from other sources.

This final rule exempts special purpose shipments of potatoes from the grade, size, maturity, inspection and assessment requirements prescribed under the order’s handling regulations for Colorado Area No. 3 potatoes. Based on authority in §§ 948.22, 948.23, and 948.24 of the order, the Committee at its meeting on December 14, 2000, unanimously recommended that potatoes shipped for the purpose of experimentation and the manufacture or conversion into specified products be exempt from the grade, size, maturity, and inspection requirements of the order. The Committee at its meeting on March 8, 2001, recommended that potatoes for experimentation and the manufacture or conversion into specified products be exempt from assessment requirements. It also recommended that the regulatory text of the applicable provisions be clarified by specifying that potatoes shipped for livestock feed, charity, and certified seed are exempt from assessment requirements.

Producers and handlers within the production area are interested in developing innovative uses for fresh potatoes. The Committee anticipates that some handlers may want to ship traditional or experimental varieties for the manufacture or conversion of potatoes into fresh forms such as fresh cut french fries using experimental packaging and preservation methods. The Committee strongly encourages innovation that could result in the development of new varieties and market opportunities for the expanded use of fresh forms of potato products, such as those packaged in vacuum-sealed bags. The relaxation of Area No. 3’s handling and assessment requirements is expected to encourage new product development, which benefits producers, handlers, buyers, and consumers by increasing the fresh utilization of Colorado potatoes. The changes are expected to have a positive economic impact on the Colorado potato industry.

As with all special purpose shipments, handlers are required to apply and obtain a Certificate of Privilege for handling such potatoes and furnish the Committee such information as they may require to track shipments, determine whether applicable requirements have been met, and verify whether proper disposition has occurred. The intent of the Committee is to keep reporting requirements to a minimum level necessary to monitor compliance while determining the viability and extent of any changes in the marketing of the area potatoes. There is no available information detailing how many potatoes this relaxation will allow to be marketed. During the previous growing season, one producer planted less than 20 acres of the non-traditional, experimental type varieties on a trial basis. No viable alternatives to this action were identified to ensure innovations in marketing and product development. Furthermore, the goals expressed by the Committee could not be solved absent this action.

The Committee estimates that two or three handlers may apply for and obtain a Certificate of Privilege for the handling of potatoes for experimentation or for the manufacture or conversion into specified products. It is estimated that the time taken by the handlers who apply will total less than ten hours and this time is currently approved under OMB No. 0581-0178 by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).

As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. As noted in the initial regulatory flexibility analysis, the Department has not identified any relevant Federal rules that duplicate, overlap or conflict with this final rule.

In addition, the Committee's meetings were widely publicized throughout the Colorado potato industry and all interested persons were invited to attend the meetings and participate in Committee deliberations on all issues. Like all Committee meetings, those held on December 14, 2000, and March 8, 2001, were public meetings and all entities, both large and small, were able to express their views on this issue.

A proposed rule concerning this action was published in the Federal Register on August 2, 2001 (66 FR 40155). Copies of the rule were mailed or sent via facsimile to all Committee members and potato handlers. Finally, the rule was made available through the Internet by the Office of the Federal Register and the Department. A 20-day comment period ending August 22, 2001, was provided to allow interested persons to respond to the proposal. No comments were received. Accordingly, no changes are made to the rule as proposed.

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

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

It is further found that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register (5 U.S.C. 553) because handlers are already shipping potatoes from the 2000-01 crop and handlers want to take advantage of the relaxed requirements as soon as possible. Further, handlers are aware of this rule, which was recommended at two public meetings. Also, a 20-day comment period was provided for in the proposed rule, and no comments were received.

On July 13, 2000, the Service published in the Federal Register at 65 FR 43528-43534 a final rule (INS No. 1946-98) delegating to the DOL the authority to adjudicate certain H-2A petitions for the temporary employment of nonimmigrant aliens in agriculture in the United States. The final rule, which amended 8 CFR parts 103 and 214, was to take effect on November 13, 2000.

Also on July 13, 2000, the DOL published a final rule at 65 FR 43538 with an effective date of November 13, 2000, implementing the above-mentioned delegation of authority from the Service to the DOL.

On November 13, 2000, the Service at 65 FR 67616 published a final rule; and DOL at 65 FR 67628 published an interim final rule delaying the effective date of their respective July 13, 2000, H-2A rules until October 1, 2001.

On July 13, 2000, and concurrently with the H-2A delegation of authority rule (INS No. 1946-98), the Service published a proposed rule for comment (INS No. 2059-00) proposing among other things, that all petition requests, extensions of stay, and change of status petitions must be filed with DOL and that the current Service petition fee would be collected by DOL as part of the combined fee.

Concurrently with publication of INS No. 2059-00, the DOL published at 65 FR 43545 a companion notice of proposed rulemaking (NPRM) setting forth implementation measures necessary for the successful implementation of the delegation of authority to adjudicate petitions.1

On August 17, 2000, at 65 FR 50166 the Service reopened and extended the comment period for INS No. 2059-00. Also on August 17, 2000, at 65 FR 50170 the DOL reopened and extended the comment period on its NPRM that is a companion to INS No. 2059-00.

Commenters raised a number of issues about the proposed rules. The comments received by the DOL as a result of the August 17, 2000, reopening and extension of the proposed rule did not provide sufficient information to permit the DOL to draft a final rule. As a result, the DOL has decided to reopen and extend the comment period on its proposed rule published at 65 FR 43545 (July 13, 2000). In addition, DOL intends to hold informal briefings to obtain additional information necessary to address the concerns of commenters and resolve a number of issues raised during the initial comment period on its proposed rule.

Finalizing both the Service and DOL proposed rules is essential to the effective implementation of the Service delegation of authority to the DOL to adjudicate petitions for temporary employment of nonimmigrant aliens in the United States. Allowing the Service's final rule to become effective without finalizing the action on the proposed rule published by the DOL would lead to administrative uncertainty and result in confusion on the part of employers, agricultural workers, and other interested parties. In response to DOL's intended actions to reopen and extend the comment period on the July 13, 2000, proposed rule and their additional plans to hold informal briefings, the Service has concluded that it is necessary to delay the effective date of the final rule until the rulemaking on the DOL companion proposal is completed. Therefore, the Service is delaying the effective date of the July 13, 2000, final rule until October 1, 2002.

The Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom (UK), recently notified the FAA that an unsafe condition may exist on RR Dart 525, 525F, 528, 528D, 529, 529D, 530, 532, 535, 542, and 552 series turboprop engines. The CAA advises that three reports of uncontained HPT disc failures have occurred on in-service engines. The results of an investigation reveal that fretting, wear, and open clearance between the HPT disc diaphragm seal arm and intermediate pressure turbine (IPT) disc diaphragm seal arm can result in a high-response disc vibration mode, which results in high-cycle-fatigue (HCF) fractures in the HPT disc. The manufacturer, through testing, has shown that by adding an interference fit between the HPT and IPT seal arms, the discs become effectively preloaded against each other, significantly reducing disc diaphragm vibratory stresses. This condition, if not corrected, could result in HPT disc failure, which could result in an uncontained engine failure and damage to the airplane.

This engine model is manufactured in the UK, and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the CAA has kept the FAA informed of the situation described above. The FAA has examined the findings of the CAA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other Rolls-Royce plc Dart 525, 525F, 528, 528D, 529, 529D, 530, 532, 535, 542, and 552 series turboprop engines of the same type design, this AD is being issued to prevent HPT disc failure, which could result in an uncontained engine failure and damage to the airplane. This AD requires the scheduled replacement of HPT discs of the affected design with serviceable discs. The cycles and calendar dates of the replacement schedule are based on risk analysis and the need for owners/operators to have an adequate length of time to accomplish this AD.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NE-29-AD.” The postcard will be date stamped and returned to the commenter.

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

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

On April 18, 2001 a document proposing to amend Part 71 of the Federal Aviation Regulations (14 CFR Part 71) by extending Class D airspace upward to, but not including 3000 feet Above Ground Level (AGL) at Westchester County Airport, White Plains, NY, was published in the Federal Register (66 FR 19907). Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments to the proposal were received. The rule is adopted as proposed. The coordinates for this airspace docket are based on North American Datum 83. Class D airspace areas designations for airspace extending upward from the surface are published in Paragraph 5000 of FAA Order 7400.9J, dated August 31, 2001 and effective September 16, 2001. The Class D airspace designation listed in this document will be published in the order.

This amendment to Part 71 of the Federal Aviation Regulations (14 CFR Part 71) provides controlled Class D airspace extending upward from the surface of the earth to 3000 feet AGL for aircraft conducting IFR operations at Westchester County Airport, White Plains, NY.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation it is certified that this rule will not have significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On May 29, 2001 a document proposing to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) by establishing Class E airspace extending upward from 700 feet Above Ground Level (AGL) for an RNAV, Helicopter RNAV343 approach to the Charles Cole Memorial Hospital Heliport, Coudersport was published in the Federal Register (66 FR 29058-29059). Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA on or before June 28, 2001. No comments to the proposal were received. The rule is adopted as proposed. The coordinates for this airspace docket are based on North American Datum 83. Class E airspace areas designations for airspace extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9J, dated August 31, 2001 and effective September 16, 2001, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published in the Order.

This amendment to part 71 of the Federal Aviation Regulations (14 CFR part 71) provides controlled Class E airspace extending upward from 700 feet above the surface for aircraft conducting Instrument Flight Rules (IFR) operations at the Charles Cole Memorial Hospital Heliport, Couderport, PA.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routing matter that will only affect air traffic procedures and air navigation it is certified that this rule will not have significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On June 11, 2001 a document proposing to amend Part 71 of the Federal Aviation Regulations (14 CFR Part 71) by establishing Class E airspace extending upward from 700 feet above Ground Level (AGL) for an RNAV, Helicopter RNAV262 approach to the Shenango-UMPC Horizon Hospital Heliport, Sharon, PA was published in the Federal Register (66 FR 31196-31197). Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA on or before July 11, 2001. No comments to the proposal were received. The rule is adopted as proposed. The coordinates for this airspace docket are based on North American Datum 83. Class E airspace areas designations for airspace extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9J, dated August 31, 2001 and effective September 16, 2001, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published in the order.

This amendment to Part 71 of the Federal Aviation Regulations (14 CFR Part 71) provides controlled Class E airspace extending upward from 700 feet above the surface for aircraft conducting Instrument Flight Rules (IFR) operations at the Shenango-UMPC Horizon Hospital Heliport, Sharon, PA.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation it is certified that this rule will not have significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On July 24, 2001, a document proposing to amend Part 71 of the Federal Aviation Regulations (14 CFR Part 71) by establishing Class E airspace extending upward from 700 feet above the surface within a 6.2 mile radius of the Stafford Regional Airport, Stafford, VA was published in the Federal Register (66 FR 38385-38386). Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA on or before August 23, 2001. No comments to the proposal were received. The rule is adopted as proposed. The coordinates for this airspace docket are based on North American Datum 83. Class E airspace areas designations for airspace extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9J, dated August 31, 2001 and effective September 16, 2001, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published in the Order.

This amendment to Part 71 of the Federal Aviation Regulations (14 CFR Part 71) provides controlled Class E airspace extending upward from 700 feet above the surface for aircraft conducting IFR operations at the Stafford Regional Airport, Stafford, VA.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On July 24, 2001 a document proposing to amend Part 71 of the Federal Aviation Regulations (14 CFR Part 71) by expanding Class E airspace extending upward from 700 feet Above Ground Level (AGL) at Greater Pittsburgh International Airport, and Allegheny County Airport, PA was published in the Federal Register (66 FR 38386-38387). Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments to the proposal were received. The rule is adopted as proposed. The coordinates for this airspace docket are based on North American Datum 83. Class E airspace areas designations for airspace extending upward from 700 feet or more above the surface of the earth are published in Paragraph 6005 of FAA Order 7400.9J, dated August 31, 2001 and effective September 16, 2001. The Class E airspace designation listed in this document will be published in the order.

This amendment to Part 71 of the Federal Aviation Regulations (14 CFR Part 71) provides controlled Class E airspace extending upward from 700 feet above the surface of the earth for aircraft conducting IFR operations at Greater Pittsburgh International Airport and Allegheny County Airport, Pittsburgh, PA.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation it is certified that this rule will not have significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The Bureau of Export Administration (BXA) is amending the Export Administration Regulations (EAR) to implement understandings reached at the annual plenary meeting of the Australia Group (AG) chemical and biological weapons nonproliferation control regime that was held in Paris on October 2-5, 2000. The Australia Group is a multilateral forum, consisting of 32 participating countries, that maintains export controls on a list of chemicals, biological agents, and related equipment and technology that could be used in a chemical or biological weapons program. The AG periodically reviews items on its control list to enhance the effectiveness of participating governments' national controls and to achieve greater harmonization among these controls.

At the October 2000 AG plenary meeting, participants reached an understanding that it was permissible to allow exports, without a license, to State Parties to the Chemical Weapons Convention (CWC) (destinations listed in Supplement No. 2 to part 745 of the EAR) of medical, analytical, diagnostic, and food testing kits containing small quantities of AG-controlled chemicals that also are identified as Schedule 2 or 3 chemicals under the CWC, provided that the kits: (1) Are pre-packaged materials of defined composition, (2) are specifically developed, packaged, and marketed for diagnostic, analytical, or public health purposes, and (3) contain no more than 300 grams of any single AG-controlled chemical.

This final rule implements the AG understanding on kits by amending the License Requirements section of Export Control Classification Number (ECCN) 1C350 on the Commerce Control List (CCL) to add a new Note 4 that excludes such test kits from the scope of this ECCN. These kits are now controlled under ECCN 1C995, where they continue to require a license to States not Party to the CWC for “CW” reasons and to certain destinations for “AT” reasons. This rule also revises section 742.18 of the EAR to include a description of the license requirements and licensing policies that apply to exports of test kits controlled by ECCN 1C995 to States not Party to the CWC.

Participants at the October 2000 AG plenary meeting also reached an understanding on a rule governing exports of mixtures that contain AG-controlled chemicals (identified in ECCN 1C350). Mixtures containing less than 30 percent by weight (previously 25 percent or less) of any single AG-controlled chemical generally may be exported without a license unless the controlled chemical is also: (1) A CWC Schedule 1 chemical or (2) a CWC Schedule 2 chemical destined for a State not Party to the CWC. Mixtures excluded from the scope of ECCN 1C350, as described in the License Requirements Note that applies to mixtures containing chemicals controlled by that ECCN, continue to be controlled to certain destinations under ECCN 1C995 for AT reasons. This final rule revises Note 2 in the License Requirements section of ECCN 1C350 to reflect the new AG understanding on mixtures.

A license continues to be required for exports, to States not Party to the CWC, of mixtures that contain more than 10 percent of any single AG-controlled CWC Schedule 2 chemical. A license is also still required to export mixtures containing AG-controlled CWC Schedule 1 chemicals, regardless of the concentration, unless the mixture contains less than 0.5 percent aggregate quantities of Schedule 1 chemicals as unavoidable by-products or impurities (i.e., the Schedule 1 chemicals have not been intentionally produced or added).

The October 2000 AG plenary meeting also resulted in understandings to establish a new minimum size threshold for the control of heat exchangers and condensers, to clarify controls on certain graphite-lined equipment, and to revise controls on centrifugal separators. This final rule implements these changes by revising the List of Items Controlled in ECCNs 2B350 and 2B352.

Specifically, this rule revises ECCN 2B350.d to establish a minimum size control threshold for the heat transfer surface area of heat exchangers and condensers. This ECCN now controls heat exchangers or condensers with a heat transfer surface area of less than 20 m2, but greater than 0.15 m2, where all surfaces that come in direct contact with the chemical(s) being processed are made from certain listed materials. This rule also revises ECCN 2B350 to clarify that certain heat exchangers or condensers (2B350.d.4), distillation or absorption columns (2B350.e.4), multi-walled piping (2B350.h.4), and pumps (2B350.i.6) are controlled under this entry if all surfaces that come in direct contact with the chemical being processed are made of carbon-graphite. A technical note is added to ECCN 2B350 to define “carbon-graphite” as a composition consisting primarily of graphite and amorphous carbon, in which the graphite is 8 percent or more by weight of the composition.

This final rule revises the controls on centrifugal separators controlled under ECCN 2B352 by changing the control criterion that applies to sealing joints located within the steam containment area from “double or multiple sealing joints” to “one or more sealing joints”.

Finally, this rule amends the EAR to add Cyprus and Turkey as the two newest participating countries in the Australia Group (which now includes a total of 32 countries). Supplement No. 1 to part 740 (Country Groups) is revised to add Cyprus and Turkey to Country Group A:3 (Australia Group) and Supplement No. 1 to part 738 (Commerce Country Chart) is revised to remove the licensing requirements for both countries under CB Column 2 in conformance with the licensing policy that applies to other AG participating countries. This rule also amends section 770.2 paragraph (k), “Interpretation 11: Precursor chemicals,” by removing an unnecessary listing of the countries participating in the Australia Group.

The Bureau of Export Administration (BXA) also is amending provisions in the Export Administration Regulations (EAR) related to the Chemical Weapons Convention (CWC) to clarify BXA's export license requirements and policies for these chemicals and precursors in light of the CWC prohibition on retransfers of Schedule 1 chemicals to third countries and the CWC prohibition on exports of Schedule 2 chemicals and precursors to States not Party to the CWC that took effect on April 29, 2000.

Specifically, this rule revises section 742.18(b)(1)(i) in the EAR, which identifies certain factors that BXA will consider when reviewing license applications to export Schedule 1 chemicals to States Parties to the CWC (see Supplement No. 2 to part 745 of the EAR). Previously, paragraph (b)(1)(i) listed three conditions that had to be met before BXA would approve an application to export Schedule 1 chemicals to States Parties to the CWC. Now, the licensing policy in paragraph (b)(1)(i) states that BXA generally will deny license applications to export Schedule 1 chemicals to States Parties to the CWC, unless all of the conditions are met. A new licensing condition, which restates the CWC prohibition against retransfers of Schedule 1 chemicals to third countries, is added to the three conditions originally listed in paragraph (b)(1)(i). BXA generally will deny applications to export CWC Schedule 1 chemicals that were imported into the United States on or after April 29, 1997, unless the Schedule 1 chemicals are to be exported back to the same State Party from which they were previously imported.

This rule also amends section 742.18 of the EAR by removing the license requirements and policies that applied to exports of CWC Schedule 2 chemicals and precursors to States not Party to the CWC prior to the April 29, 2000, effective date of the CWC prohibition on such exports. Since April 29, 2000, all exports of CWC Schedule 2 chemicals to States not Party to the CWC have required a license and have been subject to a general policy of denial.

In addition, this rule revises section 742.18 to clarify the licensing requirements and policies that apply to exports of Schedule 3 chemicals and precursors controlled for CW reasons by Export Control Classification Number (ECCN) 1C350 or 1C355 to States not Party to the CWC. This rule states that an End-Use Certificate is required to export any quantity of a CWC Schedule 3 chemical to States not Party to the CWC, regardless of whether or not a license is required for reasons other than CW reasons (please note that BXA does not require submission of an End-Use Certificate for reexports; however, reexports of Schedule 3 chemicals may be subject to an End-Use Certificate requirement by governments of other countries). The CWC-related licensing requirements in section 742.18 are also revised to inform exporters that exports of chemicals controlled for CW reasons may require a license for other reasons set forth elsewhere in the EAR. Section 742.18 now cross-references the Australia Group licensing requirements and policies in section 742.2 of the EAR, the end-use and end-user restrictions in part 744 of the EAR, and the restrictions in part 746 of the EAR that apply to embargoed destinations.

This rule revises Supplement No. 2 to part 745 (titled “States Parties to the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction”) by adding the names of countries that have recently become CWC States Parties (i.e., Azerbaijan, Colombia, Dominica, Eritrea, Gabon, Jamaica, Kazakhstan, Kiribati, Liechtenstein, Malaysia, Mozambique, Nicaragua, San Marino, the United Arab Emirates, Yemen, the Federal Republic of Yugoslavia (Serbia and Montenegro), and Zambia).

This rule amends Supplement No. 1 to part 774 (the Commerce Control List) (CCL) by revising the “License Requirements” sections of ECCNs 1C350 and 1C355 to clarify the licensing requirements and policies for chemicals controlled by these ECCNs for CW reasons. The revisions to these ECCNs conform with the clarifications that this rule makes in the CWC licensing requirements and policies described in section 742.18 of the EAR. The rule clarifies and restructures, but does not change, BXA's policy concerning sample shipments of chemicals and precursors controlled by ECCN 1C350. For example, this rule adds CWC Schedule 2 chemicals to the category of “chemicals not eligible” for sample shipments, as described in the License Requirements Notes for ECCN 1C350. Language is added to the eligibility requirements for sample shipments in ECCN 1C350 to emphasize that the End-Use Certificate requirement described in section 745.2 of the EAR applies to exports of “any quantity” of Schedule 3 chemicals to CWC non-States Parties.

This rule also revises Note 1(b) in the License Requirements section of ECCN 1C355 to implement a decision of the Organization for the Prevention of Chemical Weapons (OPCW) of the CWC concerning mixtures that contain one or more CWC Schedule 3 chemicals. The OPCW eliminated end-use certificate requirements for products containing “30 percent or less” by weight of any single Schedule 3 chemical. However, the AG rule for mixtures that contain Schedule 3 chemicals controlled by ECCN 1C350 only exempts mixtures that contain “less than 30 percent” by weight of any single Schedule 3 chemical. Therefore, this rule implements a mixtures rule of “less than 30 percent” in ECCN 1C355 to be consistent with the AG mixtures rule in ECCN 1C350.

In addition, this rule revises the requirements for mixtures containing one or more CWC Schedule 2 chemicals controlled by ECCN 1C355 to reflect the more stringent CWC controls that apply to the toxic chemical PFIB. Mixtures containing one or more CWC Schedule 2 chemicals controlled by ECCN 1C355 do not require a license for CW reasons if they contain 10 percent or less of any single CWC Schedule 2 chemical, except for mixtures containing PFIB, which require a license when PFIB constitutes more than 1 percent of the weight of the mixture.

Finally, this rule amends section 736.2(b)(7)(i), which contains Prohibition Seven, “Support of Proliferation Activities (U.S. Person Proliferation Activity),” by removing the reference to the End-Use Certificate requirement that previously applied to exports of CWC Schedule 2 chemicals to States not Party to the CWC. This change is based on the CWC prohibition on exports of Schedule 2 chemicals and precursors to States not Party to the CWC that took effect on April 29, 2000. In addition, this rule amends section 736.2(b)(7)(i) to correctly reference the advance notification and annual report requirements contained in section 745.1 that apply to Schedule 1 chemicals and precursors listed in Supplement No. 1 to part 745 of the EAR.

1. This rule has been determined not to be significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid OMB Control Number. This rule contains collections of information subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). These collections have been approved by the Office of Management and Budget under Control Numbers 0694-0088 and 0694-0117.

3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (Sec. 5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 5 U.S.C. 553 or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable.

Therefore, this regulation is issued in final form. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis. Comments should be submitted to Willard Fisher, Regulatory Policy Division, Bureau of Export Administration, U.S. Department of Commerce, Room 2705, 14th Street and Pennsylvania Avenue, N.W., Washington, DC 20230.

The Rule was issued by the Commission in 1979, 44 FR 66466 (Nov. 19, 1979), in response to a directive in the Energy Policy and Conservation Act of 1975.1 The Rule covers eight categories of major household appliances: refrigerators and refrigerator-freezers, freezers, dishwashers, clothes washers, water heaters (this category includes storage-type water heaters, gas-fired instantaneous water heaters, and heat pump water heaters), room air conditioners, furnaces (this category includes boilers), and central air conditioners (this category includes heat pumps). The Rule also covers pool heaters, 59 FR 49556 (Sept. 28, 1994), and contains requirements that pertain to fluorescent lamp ballasts, 54 FR 28031 (July 5, 1989), certain plumbing products, 58 FR 54955 (Oct. 25, 1993), and certain lighting products, 59 FR 25176 (May 13, 1994, eff. May 15, 1995).

The Rule requires manufacturers of all covered appliances and pool heaters to disclose specific energy consumption or efficiency information (derived from the DOE test procedures) at the point of sale in the form of an “EnergyGuide” label and in catalogs. It also requires manufacturers of furnaces, central air conditioners, and heat pumps either to provide fact sheets showing additional cost information, or to be listed in an industry directory showing the cost information for their products. The Rule requires manufacturers to include, on labels and fact sheets, an energy consumption or efficiency figure and a “range of comparability.” This range shows the highest and lowest energy consumption or efficiencies for all comparable appliance models so consumers can compare the energy consumption or efficiency of other models (perhaps competing brands) similar to the labeled model. The Rule also requires manufacturers to include, on labels for some products, a secondary energy usage disclosure in the form of an estimated annual operating cost based on a specified DOE national average cost for the fuel the appliance uses.

Section 305.8(b) of the Rule requires manufacturers, after filing an initial report, to report annually (by specified dates for each product type) 2 the estimated annual energy consumption or energy efficiency ratings for the appliances derived from tests performed pursuant to the DOE test procedures. Because manufacturers regularly add new models to their lines, improve existing models, and drop others, the data base from which the ranges of comparability are calculated is constantly changing. Under Section 305.10 of the Rule, to keep the required information on labels consistent with these changes, the Commission publishes new ranges (but not more often than annually) if an analysis of the new information indicates that the upper or lower limits of the ranges have changed by more than 15%. Otherwise, the Commission publishes a statement that the prior ranges remain in effect for the next year.

The annual submissions of data for dishwashers, central air conditioners, and heat pumps have been made and have been analyzed by the Commission. The ranges of comparability for central air conditioners and heat pumps have not changed by more than 15% from the current ranges for these products. Therefore, the current ranges for these products, which were published on September 16, 1996 (61 FR 48620), will remain in effect until further notice.

The data submissions for dishwashers show no significant change in the high or low ends of the range of comparability scale for standard models, but a significant change in the low end of the compact scale.3 Rather than require new ranges for the vast majority of dishwashers (the standard category) when only the high end of the compact range has changed significantly, the Commission has decided to publish new ranges of comparability only for compact dishwashers. These new ranges of comparability supersede the current ranges for compact-sized dishwashers, which were published on September 1, 2000.4 As of the effective date of these new ranges, manufacturers of compact-sized dishwashers must base the disclosures of estimated annual operating cost required at the bottom of EnergyGuides for compact-sized dishwashers on the 2001 Representative Average Unit Costs of Energy for electricity (8.29 cents per kiloWatt-hour) and natural gas (83.7 cents per therm) that were published by DOE on March 8, 2001 (66 FR 13917) and by the FTC on May 21, 2001 (66 FR 27856).

The effective date of the Federal Register Notice that established the current ranges of comparability for compact-sized dishwashers was March 22, 2001. Because section 326(c) of EPCA states that the Commission cannot require that labels be changed more often than annually to reflect changes in the ranges of comparability,5 the effective date of today's revised ranges of comparability for compact-sized dishwashers therefore will be March 22, 2002.

The ranges of comparability for standard-sized dishwashers will remain in effect until further notice. This means that manufacturers of standard-sized dishwashers must continue to use the ranges of comparability that were published on August 25, 1997 (62 FR 44890), and must continue to base the disclosures of estimated annual operating cost required at the bottom of EnergyGuides for these products on the 1997 Representative Average Unit Costs of Energy for electricity (8.31 cents per kiloWatt-hour) and natural gas (61.2 cents per therm) that were published by DOE on November 18, 1996 (61 FR 58679), and by the Commission on February 5, 1997 (62 FR 5316).

In consideration of the foregoing, the Commission revises Appendix C1 of Part 305 by publishing the following ranges of comparability for use in required disclosures (including labeling) for compact-size dishwashers beginning March 22, 2002, and amends the cost calculation formulas in Appendices H and I to Part 305 that manufacturers of central air conditioners and heat pumps must include on fact sheets and in directories, effective December 27, 2001.

The provisions of the Regulatory Flexibility Act relating to a Regulatory Flexibility Act analysis (5 U.S.C. 603-604) are not applicable to this proceeding because the amendments do not impose any new obligations on entities regulated by the Appliance Labeling Rule. Thus, the amendments will not have a “significant economic impact on a substantial number of small entities.” 5 U.S.C. 605. The Commission has concluded, therefore, that a regulatory flexibility analysis is not necessary, and certifies, under Section 605 of the Regulatory Flexibility Act (5 U.S.C. 605(b)), that the amendments announced today will not have a significant economic impact on a substantial number of small entities.

On December 21, 2000, the President signed the Consolidated Appropriations Act, 2001, Public Law 106-554 (114 Stat. 2763), which contains the Community Renewal Tax Relief Act (referred to as the Act). As noted in the accompanying Conference Report, sections 315(a)(2)(A) and (B) of the Act, contained in Title III—Administrative and Technical Provisions, were conforming amendments to reflect the fact that the tax on cigarette papers has not been imposed on “books” or papers since January 1, 2000. See 146 Cong. Rec. H 12418 (daily ed. December 15, 2000). Section 315(b) of the Act made the effective date of the provisions of section 315 retroactive to the effective date of section 9302 of the Balanced Budget Act of 1997, January 1, 2000 (111 Stat. 672).

The provisions of section 315(a)(2)(A) revised the definition of manufacturer of cigarette papers and tubes. Prior to this revision, the definition of manufacturer of cigarette papers and tubes meant any person who makes up cigarette paper into books or sets containing more than 25 papers each, or into tubes, except for personal use or consumption. Section 315(a)(2)(A) amended the definition to mean “any person who manufactures cigarette paper, or makes up cigarette paper into tubes, except for his own personal use or consumption.” This definition was amended because section 9302 of the Balanced Budget Act of 1997 changed the imposition of the Federal excise tax on cigarette papers under section 5701(c) of Title 26 of the United States Code. Under section 5701(c), a tax now is imposed on all cigarette papers manufactured in the United States regardless of whether the cigarette papers were in books or sets containing more than 25 papers each. Consequently, the definition of manufacturer of cigarette papers and tubes was changed to conform to the Federal excise tax imposed on cigarette papers.

The provisions of section 315(a)(2)(B) removed the definition of cigarette papers in 26 U.S.C. 5702. Prior to this amendment, the definition of cigarette papers meant taxable books or sets of cigarette papers. Because section 5701 of Title 26 of the United States Code imposes a tax on all cigarette papers, regardless of whether the cigarette papers are in books or sets, the definition of cigarette papers was deleted.

In this final rule, we are amending the regulations in 27 CFR parts 40, 44, 275 and 295 to conform to the changes made by the aforementioned provisions. Consequently, we are revising the regulatory definition of “manufacturer of cigarette papers and tubes” and removing the definition of “cigarette papers”.

This document merely revises existing regulations to restate the language as currently set forth in the statute. Therefore, we find it is unnecessary to issue this Treasury decision with notice and public procedure under 5 U.S.C. 553(b), or subject to the effective date limitation in section 553(d).

The provisions of the Regulatory Flexibility Act relating to a final regulatory flexibility analysis (5 U.S.C. 604) do not apply to this final rule. We were not required to publish a general notice of proposed rulemaking under 5 U.S.C. 553 or any other law. The revenue effects of this rulemaking on small businesses result directly from the underlying statute. Pursuant to 26 U.S.C. 7805(f), we have sent a copy of this regulation to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small businesses. No comments were received.

It has been determined that this final rule is not a significant regulatory action as defined by Executive Order 12866. Therefore, a regulatory assessment is not required.

The provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. Chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this final rule because there are no new or revised recordkeeping or reporting requirements.

The principal author of this document is Robert Ruhf, Regulations Division, Bureau of Alcohol, Tobacco and Firearms.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a NPRM. Because of the events described below, publishing a NPRM and delaying its effective date would be contrary to the public interest since immediate action is needed to protect the public, ports and waterways of the United States. The Coast Guard will issue a broadcast notice to mariners and place Coast Guard vessels in the vicinity of these zones to advise mariners of the restriction.

For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register.

The Coast Guard is closing a section of the Cooper River in the vicinity of U.S. Naval Weapons Station, Charleston, SC, to all vessel traffic until further notice to protect the significant national security interests in this area. The Captain of the Port Charleston has closed the Cooper River to all vessel traffic from Cooper River Lighted Buoy 62 (LLNR 2930) in the vicinity of the entrance to Goose Creek to Cooper River Light 87 (LLNR 3135) near the entrance to Foster Creek until further notice. Goose Creek is also closed until further notice.

This security zone is needed for national security reasons following the recent terrorist attacks in New York City, Washington, DC and Western Pennsylvania, particularly the attack on United States military interests in Washington, DC. There will be Coast Guard and naval patrol vessels on scene to monitor traffic through these areas. Entry into these security zones is prohibited, unless specifically authorized by the Captain of the Port, Charleston, South Carolina.

The Coast Guard has met with members of the waterway community to discuss this closure. Vessels may be allowed to enter the zone with the authorization of the Coast Guard Captain of the Port. Vessels wishing to transit the security zone are encouraged to contact the Captain of the Port as soon as possible to request this authorization. This security zone only slightly extends the existing restricted area for this facility found in 33 CFR 334.460.

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

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast Guard considered whether this rule would have a significant economic effect upon a substantial number of small entities. “Small entities” include 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.

This rule may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit a portion of the Cooper River in the vicinity of U.S. Naval Weapons Station, Charleston, SC. The Coast Guard preliminary review indicates this temporary rule will not have a significant economic impact on a substantial number of small entities under 5 U.S.C. 605(b) because small entities may be allowed to enter on a case by case basis with the authorization of the Captain of the Port.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding this rule.

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 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 requirements under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

A rule has implication 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 will 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.

The Coast Guard preliminary review indicates this temporary rule is categorically excluded from further environmental documentation under Figure 2-1, paragraph 34(g) of Commandant Instruction M16475.lD. The environmental analysis and Categorical Exclusion Determination will be prepared and submitted after establishment of this temporary security zone, and will be available in the docket. This temporary rule protects the Navy facility, the public, and the waterways of the United States. The Categorical Exclusion Determination will be made available in the docket for inspection or copying where indicated under ADDRESSES.

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 relationships 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 Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a NPRM. Because of recent terrorist attacks in the United States, there is an urgent need to protect persons in the vicinity of the HOVENSA refinery. Publishing a NPRM and delaying its effective date would be contrary to the public interest since immediate action is needed to protect the public and this port in the U.S. Virgin Islands. The Coast Guard will issue a broadcast notice to mariners to advise mariners of the restriction.

For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register.

On September 11, 2001, there were terrorist attacks on the World Trade Center buildings in New York and the Pentagon in Arlington, Virginia. Given these events and the highly volatile nature of the substances stored at the HOVENSA facility, there is a risk that subversive activity could be launched by persons aboard commercial tank and freight vessels calling at the HOVENSA facility in St. Croix, USVI. The Captain of the Port San Juan is reducing this risk by prohibiting all persons aboard these vessels from disembarking while moored at the HOVENSA facility unless escorted by designated HOVENSA personnel or specifically permitted by the Captain of the Port San Juan. HOVENSA security personnel, in conjunction with local police department personnel, will assist in the enforcement of these security zones.

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

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast Guard considered whether this rule would have a significant economic effect upon a substantial number of small entities. “Small entities” include 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 because persons may be allowed to disembark the vessels on a case by case basis with the authorization of the Captain of the Port and this temporary rule is only in effect for a limited time.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding this rule.

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 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 requirements under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

A rule has implication 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 will 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.

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

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 relationships 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 Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. The safety zone is being established to enable the installation of a new lift span on the Tomlinson Bridge. This operation is one of the final stages of a multi-year bridge reconstruction project. The timing of this phase is dependent upon a number of variables, including tidal conditions and ambient temperatures for curing concrete. Following the installation of the new lift span, portions of the navigable channel must be dredged and the temporary Tomlinson Bridge will be removed. Both of these operations are permitted to occur only between October 1 and January 31.

For these reasons, it was determined that the delay inherent in the NPRM process would be contrary to the public interest. Failure to complete installation of the new lift span will delay reopening the Tomlinson Bridge and prevent removal of the temporary bridge until October 2002. That delay would, in turn, result in significant additional construction costs and prolong the impediment to navigation represented by the presence of two adjacent bridges across the waterway.

Moreover, it was determined that the NPRM process would be unnecessary. The State of Connecticut met with known waterway users August 22, 2000 and July 10, 2001 to discuss the anticipated channel closure required for the lift span installation. Waterway users in attendance acknowledge the necessity of the channel closure and the ability to adjust their waterway use accordingly. The State has continued to communicate with waterway users to apprise them of the anticipated safety zone dates and has identified the effective dates of this temporary rule as those preferred by those affected.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. For the reasons stated above, we have determined that a delay in the effective dates of the temporary rule would be unnecessary and contrary to the public interest. Advance notice of the safety zone will be disseminated by notice to mariners.

The Coast Guard is establishing a safety zone on all waters of the Quinnipiac River within 100 yards of the north side and 500 yards of the south side of the Tomlinson Bridge, located in approximate position 41° 17′9″ N, 072° 54′3″ W. This safety zone is effective from 7 a.m. (EST) on October 15, 2001 to 7 a.m. (EST) on October 20, 2001. The safety zone will prevent waterway users from transiting through this portion of the Quinnipiac River while the new Tomlinson Bridge lift span is transported by barge beneath the bridge and raised into position. The safety zone will enable construction personnel to complete this vital phase of a long-term bridge reconstruction project and protect mariners from the hazards associated with this operation.

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).

Recreational vessel traffic on the waterway is minimal during the period of the proposed safety zone. The State of Connecticut held several meetings in advance of the proposed channel closure to apprise known waterway users of the effective dates of the safety zone so that necessary, alternate arrangement could be made to avoid or mitigate any adverse consequences.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. The proposed rule may affect the owners and operators of vessels intending to transit the boundaries of the safety zone during its effective dates. The rule will not have a substantial affect on small entities because it has been preceded by regular communication between the State of Connecticut and known waterway users regarding the need for and timing of the channel closure. Any entities that might be affected by the closure have had sufficient advance notice to make alternate arrangements.

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 will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble

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

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

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

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(g) of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation.

On February 15, 2000, VA published a proposed rule in the Federal Register (65 FR 7468), to clarify a Board Rule of Practice at 38 CFR 20.711 dealing with subpoena procedures in Board proceedings. The proposed changes relate to: (1) Where such a motion must be filed; (2) ruling on the motion; (3) service of a subpoena; (4) motions to quash or modify subpoenas; and (5) enforcing compliance with a subpoena.

Only two comments were received. A national veterans' service organization stated that it concurred in the proposed amendments. A representative of a group of attorneys engaged in the practice of veterans' law posed several objections.

The primary objection of this writer, occupying approximately half of his comments, is grounded in the misconception that these amendments remove authority from local VA offices to issue subpoenas in cases that are not before the Board. The Rule never gave that authority, nor do the amendments remove it.

The authority of field facility heads to issue subpoenas in matters within their jurisdiction is at 38 CFR 2.1(b). The Board's Rules of Practice deal only with procedures in matters that are before the Board and within its statutory jurisdiction. The Rule in question appears in a section of the Board's Rules entitled “Hearings on Appeal.” Paragraph (a) of the Rule, which is not being amended, describes who may move for a subpoena under the rule as “the appellant, or his or her representative.” (Emphasis added.) What is to be removed is a now obsolete procedure that once permitted VA field facility directors to decide motions for subpoenas in Board proceedings held at those facilities. Under 38 U.S.C. 7102(a) only members of the Board may make determinations on motions in Board proceedings.

The writer objects to the addition of certain quoted language to Rule 711(e) (38 CFR 20.711(e)) and urges that it be stricken. The language he quotes is being removed from paragraph (e), not added, as the proposed rule-making document explained. Thus this objection is also moot.

Next, the writer objects to language in proposed Rule 711(h) (which deals with motions to quash or modify a subpoena), stating that it “creates a mechanism for adversarial proceedings regarding the modification or attempts by the Agency to ‘quash’ subpoena requests.” He maintains that this would be for the convenience of VA at the expense of veterans.

Motions to quash are not new. The procedure has been available through this Rule since 1992. (57 FR 4088, 4122) Permitting motions to quash subpoenas is standard practice throughout American jurisprudence. Such motions provide a mechanism for resolving disputes between persons seeking subpoenas and persons subpoenaed and has nothing to do with agency convenience, or the lack of it.

The amendments in fact aid veterans and their representatives, who are usually the persons seeking subpoenas as a means of obtaining evidence to present to the Board. The amendments provide a way for them to get relief when the person who has evidence makes unreasonable demands regarding its release. The proposed rule-making document gives the example of unreasonable demands for reimbursement for costs involved in honoring a subpoena duces tecum to obtain physical evidence, typically documents. The writer further implies that this amendment is purposefully designed to impede access to documents held by VA. That is simply not the case. VA itself is seldom the subject of a subpoena in a Board proceeding because there are other methods for readily obtaining VA records. See 38 U.S.C. 5701(b) and 5 U.S.C. 552.

The proposed rule is adopted without changes.

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This rule will affect VA beneficiaries and will not affect small businesses. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analyses requirement of sections 603 and 604.

This section provides additional information by addressing the following questions:

The Clean Air Act Amendments (CAA) of 1990 required all state and local permitting authorities to develop operating permit programs that meet certain federal criteria. 42 U.S.C. 7661-7661e. In implementing the operating permit programs, the permitting authorities require certain sources of air pollution to obtain permits that contain all applicable requirements under the CAA. The focus of the operating permit program is to improve compliance and enforcement by issuing each source a permit that consolidates all of the applicable CAA requirements into a federally enforceable document. By consolidating all of the applicable requirements, the source, the public, and the permitting authorities can more easily determine what CAA requirements apply and how to determine compliance with those requirements.

Sources required to obtain an operating permit under this program include “major” sources of air pollution and certain other sources specified in the CAA or in EPA's implementing regulations. See 40 CFR 70.3. For example, all sources regulated under the acid rain program, regardless of size, must obtain operating permits. Examples of major sources include: those that have the potential to emit 100 tons per year or more of volatile organic compounds, carbon monoxide, lead, sulfur dioxide, nitrogen oxides, or particulate matter (PM 10); those that emit 10 tons per year of any single hazardous air pollutant specifically listed under the CAA (HAP); or those that emit 25 tons per year or more of a combination of HAPs. In areas that are not meeting the National Ambient Air Quality Standards for ozone, carbon monoxide, or particulate matter, major sources are defined by the gravity of the nonattainment classification. For example, in ozone nonattainment areas classified as “serious,” such as Massachusetts, major sources include those with the potential of emitting 50 tons per year or more of volatile organic compounds or nitrogen oxides.

Where an operating permit program substantially, but not fully, meets the criteria outlined in the implementing regulations codified at 40 Code of Federal Regulations part 70, EPA may grant the program interim approval. Because Massachusetts' operating permit program substantially, but not fully, met the requirements of part 70, EPA granted interim approval to the program in a rulemaking published on February 2, 1996 (61 FR 3827). The interim approval document described the corrections that had to be made in order for Massachusetts' program to receive full approval. Massachusetts submitted two revisions to its operating permit program; these revisions were dated November 19, 1996 and May 11, 2001. This document describes changes made to the Massachusetts operating permit program since interim approval was granted.

EPA's February 2, 1996 rulemaking explained that Massachusetts must make the following rule changes to receive full approval of its operating permit program.

(1) Revise Appendix C(8)(b)(4) to eliminate the applicability of the permit shield for administrative amendments. Massachusetts changed Appendix C(8)(b)(4) to state the permit shield provisions shall not apply to changes made to the operating permit using the modification procedures of Appendix C(8).

(2) In Appendix C(7)(b)(3)(e), the program regulation provided that a notice of an operational flexibility change made pursuant to an intra-facility emissions trading plan may include notice of “[a]ny permit term or condition that is no longer applicable as a result of the change.” Changes made pursuant to an intra-facility emissions trading plan must be provided for in the permit, and such plans provide no authority to render permit conditions inapplicable through a simple notice. 40 CFR 70.4(b)(12)(iii)(A). Massachusetts has removed this section of its regulation.

(3) Appendix C(4)(a)(5) did not clearly require a facility to apply for an operating permit if it became Subject to Appendix C without any new construction, for example, by relaxing an emissions cap in a restricted emission status plan approval. Appendix C(4)(a)(6) and Appendix C(4)(a)(7) have been added to clarify when an application must be submitted for facilities that exceed the major source threshold of a regulated pollutant.

(4) Appendix C(8)(a)(2)(b) prohibited any relaxation of monitoring, reporting, or recordkeeping from qualifying as a minor permit modification. EPA's rule prohibits all significant changes to monitoring, reporting or recordkeeping, whether or not they are classified as a relaxation, from being processed as a minor permit modification. Massachusetts has revised Appendix C(8)(a)(2)(b) by replacing relaxation with significant change.

EPA has concluded that these changes address all of EPA's interim approval issues.

Massachusetts made other substantive changes after EPA granted interim approval to its operating permit program on February 2, 1996. On November 19, 1996 and May 11, 2001, Massachusetts submitted revisions to 310 CMR 7.00: Appendix C: Operating Permit and Compliance Program. In addition to certain changes in formatting and non-substantive revisions, Massachusetts made the following substantive program changes.

(1) Massachusetts amended the definition of “volatile organic compound” (VOC) to be consistent with revisions EPA has made to its definition.

(2) Massachusetts clarified the applicability of Appendix C by adding the definition of facility which is more inclusive than the federal definition of major source. Unlike major source, a facility is not subdivided by Major Group as described in the Standard Industrial Classification Manual (SIC). The term facility aggregates all emissions of a pollutant located on the same, adjacent, or contiguous property, regardless of the SIC grouping of the emission units.

(3) Massachusetts amended Appendix C(2) to ensure that the time frame for submitting an operating permit application by a non-major source does not conflict with EPA requirements. As previously promulgated, Massachusetts' rule allowed facilities to submit applications subsequent to the date established by EPA at 40 CFR part 63.

(4) Massachusetts amended the definition of major source to include a provision to sum all HAPs regardless of SIC code classification. This is consistent with EPA's definition of a major source as defined under Section 112 of the CAA. 42 U.S.C. 7412.

(5) In Appendix C(2)(f), Massachusetts provides two additional mechanisms for a source to establish that its emissions are below major source thresholds, and, therefore, the source is not required to apply for an operating permit. Pursuant to section (2)(f)(3), a source may take a limit on its potential to emit in a construction permit, or “plan approval.” Pursuant to section (2)(f)(4), a facility with actual emissions below 50 or 25 percent of the major source thresholds may document those very low emissions to maintain its exemption from the operating permit program.

(6) Massachusetts adopted and incorporated by reference the provisions of the acid rain program as amended on October 24, 1997, and 40 CFR part 76 as in effect on September 1, 1998. Both provisions were promulgated after EPA granted interim approval to Massachusetts' operating permit program on February 2, 1996.

(7) Massachusetts added a provision reducing the 45-day period for EPA objection to a proposed operating permit if EPA notifies Massachusetts before the end of 45 days that the Agency does not intend to object to the operating permit. This provision has no effect on the time frame for citizen petitions. The 60-day filing period for a citizen's petition runs from the expiration of EPA's full 45-day objection period.

EPA is taking final action to fully approve Massachusetts' operating permit program. EPA is also taking action to approve the additional program changes Massachusetts submitted on November, 19, 1996 and May 11, 2001. EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to grant full approval should relevant adverse comments be filed. This action will be effective November 27, 2001 unless the Agency receives adverse comments by October 29, 2001.

If EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If EPA receives no such comments, the public is advised that this action will be effective on November 27, 2001.

Under Executive Order 12866, “Regulatory Planning and Review” (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. Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities because it merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. This rule does not contain any unfunded mandates and does not significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4) because it approves pre-existing requirements under state law and does not impose any additional enforceable duties beyond that required by state law. This rule also does not have tribal implications because it will 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, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). This rule also does not have Federalism implications because it will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, “Federalism” (64 FR 43255, August 10, 1999). The rule merely approves existing requirements under state law, and does not alter the relationship or the distribution of power and responsibilities between the State and the Federal government established in the Clean Air Act. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) or Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866. This action will not impose any collection of information subject to the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., other than those previously approved and assigned OMB control number 2060-0243. For additional information concerning these requirements, see 40 CFR part 70. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a current valid OMB control number.

In reviewing State operating permit programs submitted pursuant to Title V of the Clean Air Act, EPA will approve State programs provided that they meet the requirements of the Clean Air Act and EPA's regulations codified at 40 CFR part 70. 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 State operating permit program for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews an operating permit program, to use VCS in place of a State program 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. 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. section 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. section 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 27, 2001. Interested parties should comment in response to the rule rather than petition for judicial review, unless the objection arises after the comment period allowed for in the rule. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Administrative practice and procedure, Air pollution control, Environmental Protection Agency, Intergovernmental relations, Operating permits, and Reporting and recordkeeping requirements.

On December 14, 1998, we published a final rule in the Federal Register (63 FR 68687), the procedures for pursuing civil money penalties (CMPs) and assessments now set forth at 42 CFR part 402. We are now amending part 402, subpart B, to incorporate additional CMPs authorized by sections 4541(a)(2), 4531(b)(2), 4311(b), and 4317 of the Balanced Budget Act of 1997 (BBA), Public Law 105-33. This final rule with comment period incorporates the statutory revisions of the BBA concerning CMPs and assessments into our existing CMP and assessment regulations at 42 CFR part 402, subparts A and B, as well as makes technical changes to existing delegated authority. BBA statutory revisions that would affect subpart C, which addresses our exclusion authority, are not addressed in this final rule, but will be addressed in a separate rulemaking.

This final rule amends 42 CFR part 402, to incorporate changes resulting from the enactment of the BBA. Specifically, we are revising §§ 402.1(c), 402.1(d), 402.105(d), and 402.107 and adding § 402.105(g) with regard to the following statutory authorities that are delegated to us:

Section 4541(a)(2) of the BBA adds subsection (k) to section 1834 of the Social Security Act (the Act), Payment for Outpatient Therapy Services and Comprehensive Outpatient Rehabilitation Services. Subsection (k)(6), through its cross-reference to section 1842(b)(18) of the Act, requires that billing for therapy services be subject to the mandatory assignment requirements of the Medicare statute. Failure to bill on an assignment-related basis may subject the violator to certain sanctions, including assessments and CMPs, as provided by section 1842(j)(2) of the Act. (See § 402.105(d)(3).)

Section 4531(b)(2) of the BBA adds paragraph (l) to section 1834 of the Act, Establishment of Fee Schedule for Ambulance Services. This provision requires the establishment of a fee schedule for ambulance services furnished and requires, in section 1834(l)(6) of the Act, suppliers of ambulance services to accept assignment (that is, to accept Medicare's approved payment amount as payment in full). Failure to bill on an assignment-related basis may subject the violator to sanctions, including assessments and CMPs, as provided by section 1842(j)(2) of the Act. (See § 402.105(d)(4).)

Section 4311(b) of the BBA adds section 1806 to the Act. Section 1806(b), Request For Itemized Statement For Medicare Items and Services, provides that a Medicare beneficiary has the right to request and receive an itemized statement from health care providers (for example, hospitals, nursing facilities, home health agencies, physicians, practitioners, and Durable Medical Equipment Prosthetics, Orthotics and Supplies (DMEPOS) suppliers). From the date of the beneficiary's request, the health care provider has 30 days to furnish this statement to the beneficiary. Any provider or supplier who fails to provide an itemized statement may be subject to a CMP of $100 for each failure. (See § 402.105(g).)

Section 4317 of the BBA amends section 1842(p) of the Act to include nonphysician practitioners under the requirement to provide diagnostic codes for items and services they furnish or to provide this information (if required) to the entity furnishing the item or service if ordered by the physician or nonphysician practitioner. Failure of these practitioners to supply required diagnostic codes subjects them, through a cross-reference to section 1842(j)(2) of the Act, to sanctions including assessments. (See § 402.1(c)(16).)

Section 4031(a)(2) of the BBA adds a new paragraph as section 1882(s)(3) of the Act. As a result, the original section 1882(s)(3) of the Act is redesignated as section 1882(s)(4) of the Act. We have conformed the regulations to reflect this redesignation. (See § 402.1(c)(29) and § 402.1(e)(vii).)

Finally, this final rule makes a technical correction to § 405.520(c), which currently lists the maximum civil money penalty amount as $2,000 for each bill or request for payment in which a beneficiary was billed in excess of Medicare coinsurance and deductible amounts. Section 231(c) of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law 104-191, increases the maximum civil money penalty amount to $10,000 for certain acts described in section 1128A(a) of the Act. Section 1128A(a) of the Act provides the basis for the amount of CMPs that may be imposed under § 405.520(c). We are accordingly clarifying that the maximum CMP amount under § 405.520(c) is $10,000 for each bill or request for payment. To do this, we are revising § 405.520(c) because the CMP it describes was again addressed in part 402 when it was published on December 14, 1998 (63 FR 68690). Specifically, §§ 402.1(c)(11) and 402.105(d)(2)(viii) address CMPs that we may impose when practitioners bill for services on a nonassigned basis in violation of section 1842(b)(18) of the Act. When part 402 was published, however, it did not take into account the existing provision in § 405.520(c) that addresses the same issues. To eliminate any confusion that the duplication may cause, we are revising the CMP provision that appears in § 405.520(c) to make the appropriate cross-reference to the provision that now appears in §§ 402.1(c)(11), 402.105(d)(2)(viii), and 402.107(b)(8). This conforming change serves as a cross-reference to the appropriate CMP provisions and automatically corrects the maximum penalty amount for the CMP described in § 405.520(c).

We ordinarily publish a notice of proposed rulemaking in the Federal Register and invite prior public comment on proposed rules. The notice of proposed rulemaking includes a reference to the legal authority under which the rule is proposed, and the terms and substances of the proposed rule or a description of the subjects and issues involved. This procedure can be waived, however, if an agency finds good cause that a notice-and-comment procedure is impracticable, unnecessary, or contrary to the public interest and incorporates a statement of the finding and its reasons in the rule issued.

In the present rulemaking, we find that subjecting this rule to a notice and comment period is unnecessary because this final rule with comment period incorporates technical changes to previously published CMP authorities and codifies additional authorities that result from the enactment of sections 4541(a)(2), 4531(b)(2), 4311(b), 4317, and 4031(a)(2) of the BBA and section 231(c) of the HIPAA. This final rule with comment period does not alter the legal responsibilities and regulatory requirements of the affected program participants, and does nothing more than update our regulations to reflect already existing statutory obligations.

Therefore, we find good cause to waive the notice of proposed rulemaking and to issue this final rule on an interim basis. We are providing a 60-day comment period for the public.

We have examined the requirements of Executive Order 12866 (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act (RFA) (September 19, 1980 Public Law 96-354), Executive Order 13132 (August 4, 1999, Federalism) and the Unfunded Mandates Reform Act of 1995 (2 USC 1532).

Executive Order 12866 found in 58 FR 51735 directs agencies taking “significant regulatory action” to reflect consideration of all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). This technical rule is not a significant regulatory action as defined by section 3(e) of Executive Order 12866. We believe that there are no significant costs associated with this technical rule that would impose any mandates on State, local or tribal governments, or the private sector that would result in an expenditure of $100 million in any given year. This rule incorporates technical changes to previously published CMP authorities and establishes in regulation additional authorities mandated by the BBA. We expect that all program participants will comply with the statutory and regulatory requirements making unnecessary the imposition of a CMP. Therefore, we do not anticipate more than a de minimis economic impact as a result of this technical change. Further, any impact that may occur will only affect those limited few individuals or entities that engage in prohibited behavior. We do not anticipate any savings or costs as a result of this technical change.

The Regulatory Flexibility Act of 1980 codified in 15 USC 603(a), as modified by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), requires agencies to determine whether this technical rule will have a significant economic effect on a substantial number of small entities and, if so, to identify regulatory options that could mitigate the impact when publishing a general notice of proposed rulemaking. We believe that any impact as a result of the technical rule will be minimal, since, as mentioned above, the only individuals or entities affected will be those limited few who engage in prohibited conduct. Since the vast majority of program participants comply with statutory and regulatory requirements, any aggregate economic impact will not be significant.

Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule that may result in an expenditure in any 1 year by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million (2 U.S.C. 1532). We believe that there are no significant costs associated with this technical rule that would impose any mandates on State, local or tribal governments, or the private sector that would result in an expenditure of $100 million in any given year. As was previously mentioned, since the majority of program participants comply with statutory and regulatory requirements, any aggregate economic impact will not be significant. Accordingly, we believe that a full analysis under the Regulatory Flexibility Act is not necessary.

Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. We have determined that this technical rule will not significantly affect the rights, roles, or responsibilities of the States. This rule does not impose substantial direct requirement costs on State or local governments, preempt State law, or otherwise implicate Federalism.

In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget.

The Federal Emergency Management Agency makes the final determinations listed below of modified base flood elevations for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Acting Executive Associate Director has resolved any appeals resulting from this notification.

The modified base flood elevations are not listed for each community in this notice. However, this rule includes the address of the Chief Executive Officer of the community where the modified base flood elevation determinations are available for inspection.

The modifications are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq., and with 44 CFR Part 65.

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

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

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

These modified elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.

The changes in base flood elevations are in accordance with 44 CFR 65.4.

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

The Acting Executive Associate Director, Mitigation Directorate, certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

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

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

This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

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

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

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

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

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

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

The changes in base flood elevations are in accordance with 44 CFR 65.4.

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

The Acting Executive Associate Director, Mitigation Directorate, certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the National Flood Insurance Program. No regulatory flexibility analysis has been prepared.

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

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

This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

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

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

The Agency has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.

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

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

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

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

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

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

This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

On June 15, 2001 we published a final rule, 44 CFR Part 209, 66 FR 32666, that provides guidance on the administration of the Supplemental Property Acquisition and Assistance Program. In codifying that rule, some errors were found. Neither the errors nor these corrections change the meaning of the rule. The errors consist of spacing errors, incorrect punctuation and numbering errors. This document corrects those errors.

This is a summary of the Commission's Report and Order, adopted September 5, 2001, and released September 14, 2001. The full text of this Commission decision is available for inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

This is a summary of the Commission's Report and Order, MM Docket No. 01-134, adopted September 5, 2001, and released September 14, 2001. The full text of this Commission decision is available for inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., room CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

On August 28, 2001, RSPA published a final rule under Docket HM-189R (66 FR 45376) to correct inconsistencies in terminology and minor editorial errors to improve the clarity of the HMR. This final rule makes minor corrections to the August 28, 2001 final rule, which was effective September 27, 2001.

Because the amendments do not impose new requirements, notice and public procedure are unnecessary. The following is a summarization of the corrections made under this final rule.

In amendatory instruction 55, for the entry for § 173.133, we are removing the reference for paragraph (b)(1)(ii). In addition, we are adding new amendatory instruction 71a. to correct the formula in § 173.133, paragraph (b)(1)(ii), by removing the acronym “ml” and adding the acronym “mL” in its place.

In amendatory instruction 198, for the entry “§ 179.220-24” the word “heading” is removed.

On July 1, 1996, FRA published an Interim Final Rule (61 FR 33871) in which the agency made minor changes in reporting requirements. FRA solicited comments on the interim final rule and stated that those comments would be considered in determining whether there would be a need to take further action to improve these regulations.

FRA received comments from three parties: the Brotherhood of Railroad Signalmen (BRS), Association of American Railroads (AAR); and Consolidated Rail Corporation (Conrail). All commenters were in general agreement that the regulatory changes were beneficial, however they provided various comments regarding certain provisions.

The Signal Systems Annual Report has historically been used to monitor changes in the types of signal systems installed on the nation' s railroads. Based on its regulatory review, FRA concluded that the signal system information base could be maintained while at the same time the reporting burden imposed on railroads could be reduced. FRA concluded that the information provided by this report does not need to be updated annually. FRA therefore amended this section to provide for filing of signal system reports every five years rather than on an annual basis, as was previously required. This more realistic time frame will reduce the reporting burden to the industry while maintaining an adequate information base. FRA also revised the information to be reported in order to reflect technological changes and FRA information needs. There was no opposition to this section.

Section 235.7 specifies those modifications to railroad signal systems that can be made by a railroad without the necessity of filing an application for FRA approval. Section 235.7(c)(24) provides that it is not necessary to file an application for approval for the installation, relocation, or removal of signals, interlocked switches, derails, movable-point frogs, or electric locks in an existing system directly associated with the installation of new track; the elimination of existing track other than a second main track; the extension or shortening of a passing siding; elimination of second main track in certain stated circumstances or a line relocation. FRA added to this list of changes not requiring pre-approval from FRA the conversion of pole line circuits to electronic (coded) track circuits provided that the railroad gives notice and a profile plan of the change to the FRA regional office having jurisdiction over that territory at least 60 days in advance of the change. In addition, the amendment requires the railroad to also provide a copy of the notice and profile plan to representatives of employees responsible for maintenance, inspection and testing of the signal system under 49 CFR part 236.

The AAR, while it “appreciates any efforts by government to reduce reporting burdens on railroads,” questioned the wisdom of being required to provide a copy of the advance notice to representatives of employees responsible for maintenance, inspection and testing of the signal system. The industry trade association stated, “since the union is only one of the several stakeholders in the signal system partnership, AAR questions the appropriateness of its being singled out for special treatment by FRA in the rule.”

FRA notes that no other stakeholder objected to this provision, nor did the AAR suggest that any specific stakeholder receive such notices. Signal maintainers on the line of railroad planning such work are in a perhaps unique position, with a valuable perspective to offer regarding the signal changes. Their involvement in signal modification and discontinuance proceedings in the past has provided valuable insight to FRA—insights that FRA is not willing to lose in its effort to ease reporting burdens on railroads.

Conrail expressed the opinion that the changes to this section do not go far enough. Conrail states that: “[p]ole line carrying signal control circuits can be replaced by a number of systems to carry vital signal information between locations. Such systems in use and being installed on Conrail today include: electronic track circuits carrying encoded information, conventional AC or DC coded track circuits, underground buried cable, and polar track circuits * * *.” Conrail therefore asked that FRA amend the rule to provide relief from filing an application to re-space signals when open wire signal pole line is replaced with the noted systems, including “future technologies performing the same function.” FRA notes that the rule changes will not necessarily prevent railroad use of other systems to replace pole line, however, such replacement will continue to require FRA review and approval. FRA will continue to review the use of other systems and new technologies as they develop, and will amend its procedures when it can be assured that use of other systems can be implemented safely without the necessity of FRA review. Therefore, FRA is making no change to the rule.

FRA amended 49 CFR 236.590 to provide that the inspection and cleaning time interval requirements for pneumatic apparatus (automatic train stop, automatic train control or automatic cab signal pneumatic apparatus) be governed by the air brake testing intervals established in 49 CFR 229.29 rather than the requirements of this section that required that inspection and cleaning at least once every 736 days. Although section 229.29 also requires a 736-day test interval, due to existing waivers, the testing and cleaning intervals for air brake systems and pneumatic systems on many locomotives do not coincide. By conforming the requirements of section 236.590 to those of 49 CFR 229.29, any changes in inspection and testing intervals or recordkeeping requirements made to air brake systems will automatically apply to pneumatic train control valves on similar types of locomotive.

In addition to the above changes, FRA also provided “out of service” credit that is applied to air brake systems under 49 CFR 229.33 to train control systems under 49 CFR 235.590. When a locomotive with automatic train stop, train control, or cab signal pneumatic apparatus receives out-of-use credit pursuant to § 229.33, the automatic train stop, train control, or cab signal apparatus must be tested in accordance with § 236.588 prior to the locomotive being placed in service. This further conforms the two sets of testing and maintenance requirements. All commenters supported this provision.

These amendments have been evaluated in accordance with existing policies and procedures and because they are primarily technically oriented and generally reduce the regulatory burden on railroads, FRA has concluded that the revisions do not constitute significant rule under either Executive Order 12866 or DOT's regulatory policies and procedures.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) requires a review of rules to assess their impact on small entities. FRA certifies that this rule will not have a significant impact on a substantial number of small entities. There are no substantial economic impacts for small units of government, businesses, or other organizations.

These amendments reduce information collection requirements and therefore reduce reporting burdens imposed on railroads.

FRA has evaluated these regulations in accordance with its procedure for ensuring full consideration of the potential environmental impacts of FRA actions, as required by the National Environmental Policy Act (42 U.S.C. 4321 et seq.) and related directives. FRA has determined that this final rule is not a major FRA action requiring the preparation of an environmental impact statement or environmental assessment.

FRA believes it is in compliance with Executive Order 13132. This final rule will not have a substantial 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. This final rule will not have federalism implications that impose substantial direct compliance costs on State and local governments.

FRA has evaluated these regulations in accordance with its procedure for ensuring full consideration of the potential environmental impacts of FRA actions, as required by the National Environmental Policy Act and related directives. FRA has determined that the amendment of Parts 233, 235 and 236 of Title 49 of the CFR does not constitute a major FRA action requiring an environmental assessment.

In consideration of the foregoing, the interim final rule amending 49 CFR parts 233, 235, and 236 which was published at 61 FR 33871 on July 1, 1996, is adopted as a final rule without change.

On September 30, 1994, FRA published a final rule (59 FR 50086) requiring that railroads comply with specific maintenance, inspection, and testing requirements for active highway-rail grade crossing warning systems. The final rule also requires that railroads take specific and timely actions to protect the traveling public and railroad employees from the hazards posed by malfunctioning highway-rail grade crossing warning systems.

On June 20, 1996 FRA published an Interim Final Rule which amended the rule issued in 1994 (61 FR 31802). The Interim Final Rule addressed issues raised as a result of actual experience under the new regulations. In addition, shortly after the regulations were issued, an FRA Technical Resolution Committee (TRC) met to discuss the regulations, their interpretation and implementation. Included in the TRC were FRA signal and train control specialists from across the country along with headquarters staff. Representatives from rail labor and management were invited to attend certain sessions as non-voting members to offer their perspective and expertise to the group, together with representatives of two States active in FRA's State Participation Program. Although the purpose of this TRC was to develop the appropriate application and interpretation of the final rule, the discussion, together with other lessons learned during implementation, also indicated the need to clarify certain portions of the regulatory text. Additionally, the American Short Line Railroad Association, the Brotherhood of Railroad Signalmen, and the Association of American Railroads jointly filed a Petition for Reconsideration with FRA requesting that FRA stay enforcement of certain sections of the final rule (§§ 234.215 and 234.223) pending further consideration of those provisions. Subsequent to the joint filing, FRA issued an Interim Policy Manual addressing, among others, the issues and questions raised by the petitioners. FRA granted the petition for reconsideration although it did not agree to stay enforcement since enforcement issues had been addressed in the Interim Policy Manual. The Interim Final Rule was in part a response to the joint petition for reconsideration.

FRA received a number of comments on the Interim Final Rule. The following discussion addresses those comments.

The Brotherhood of Railroad Signalmen (BRS) pointed out typographical errors in §§ 234.215 and 234.247(b). Those errors are being corrected.

The majority of changes contained in the Interim Final Rule generated no comments. Accordingly, the following section-by-section analysis addresses only those sections about which comments were received.

The Illinois Department of Transportation suggested that the term “activation failure” in the first sentence of § 234.7(a) should be replaced with the term “warning system malfunction” which would then include partial activation and false activation as situations for which telephonic reports of accidents must be made. This section requires reports within 24 hours of occurrence of impact accidents involving activation failure. Because activation failures are much more likely to immediately result in accidents, FRA needs information regarding these malfunctions as soon as possible. Telephonic reports of accidents involving partial and false activations would not materially assist FRA in its safety function, while requiring such reports would place an undue administrative burden on the railroad. FRA will still receive information pertaining to partial activations and false activations in the normal course of accident reporting. This information, together with the record keeping requirements of § 234.109, will provide FRA sufficient information with which to monitor compliance with this part and grade crossing safety generally.

The Illinois Department of Transportation recommends that the term “activation failure” be replaced in this section with the all encompassing term “warning system malfunction”. This change would have the effect of requiring that partial activations and false activations be reported to FRA within 15 days of occurrence. This requirement would burden railroads with a reporting requirement while providing FRA with information not needed on such a short time frame. FRA's information requirements will be adequately served by the record keeping requirements of § 234.109. Under that section, records of partial activations and false activations will be available to FRA for a period of one year after the occurrence. The availability of those records will provide FRA with sufficient information for safety oversight. Therefore, the change suggested by the Illinois Department of Transportation's suggestion will not be adopted.

The Iowa Department of Transportation (Iowa DOT) recommended that the last sentence of paragraph (b) be amended. This paragraph presently states: “Each flashing light unit shall be maintained to prevent dust and moisture from entering the interior of the unit. Roundels and reflectors shall be clean and in good condition.” Iowa DOT suggests adding to the last sentence “including the condition of the paint adequate to provide a contrasting dark background.”

We agree with the importance of maintaining conditions which ensure that the light unit maintain its visibility to the motorist. Essential to good visibility is the non-reflective black finish of the light hood and background surrounding the light. Maintaining a contrasting dark background contributes to the light's visibility. The present language of the rule is adequate to cover the situation in which the background or hood are in such a condition that the background does not provide sufficient contrast. FRA expects that the railroad responsible for maintenance of the crossing warning system will comply with § 234.207 which requires that “when any essential component of a highway-rail grade crossing warning system fails to perform its intended function, the cause shall be determined and the faulty component adjusted, repaired, or replaced without undue delay.” The railroad thus has the responsibility to repair or replace backgrounds or hoods if they fail to perform their intended function—to provide adequate contrasting background in the case of the background, and to provide a non-reflective shade in the case of the hood. FRA expects that the railroad responsible for maintenance of the grade crossing warning system will comply with § 234.207 in these situations. FRA Signal and Train Control inspectors will be prepared to enforce this section accordingly.

The Illinois Department of Transportation recommended that language be added to the present regulatory section as follows: “Where highway traffic signals and railroad warning signals are interconnected, additional warning time may be required to enable the traffic signals to clear the intersection and display a green signal for the track approach leg of the intersection. This time will vary depending on the length of storage distance between the tracks and the highway intersection.”

This important subject has been addressed by the Secretary of Transportation's Technical Working Group. The language proposed by the Illinois DOT is best approached as a general guideline to be used in certain situations rather than as a regulatory requirement. The Technical Working Group has recommended that practitioners, when planning and designing preemption systems, use guidance found in the Institute of Transportation Engineers (ITE) revised Recommended Practices (ITE Journal, February 1997) “Design Guidelines for Railroad Preemption at Signalized Intersections.”

One commenter suggested that this section require that signs “shall reflect current site conditions.” The content of signs mounted on grade crossing signal posts is not an appropriate matter for a rule dealing with maintenance, inspection and testing and is beyond the scope of this proceeding. The information needed to be conveyed on a signal post is dependent on a decision by the state or local transportation authority having jurisdiction over the highway crossing the railroad tracks and is subject to the requirements of the Federal Highway Administration's Manual on Uniform Traffic Control Devices (MUTCD).

The BRS questioned whether a railroad has an obligation under § 234.247, to respond to reports of false activations while a track is out of service. A railroad would have an obligation to respond to any false activation reports since the motorist will be responding to the grade crossing warning system irrespective of the status of rail service. However, this section would not apply if the grade crossing warning system is temporarily taken out of service when the tracks over the grade crossing are taken out of service or when the railroad suspends operations during a portion of the year. Of course, a full inspection and all required tests must be successfully completed before railroad operations over the grade crossing resume. This section is being revised to eliminate the typographical error of in which the phrase “or the railroad suspends operations during a portion of the year” appeared twice in paragraph (b).

Iowa Department of Transportation suggests that this section be amended by adding the following paragraphs: “(b) A tag or marking shall be affixed inside the control unit for any railroad signal which is interconnected with a highway traffic signal. In addition to the words “WARNING, INTERCONNECTION WITH HIGHWAY TRAFFIC SIGNALS,” the name, date and telephone number of the responsible highway authority shall be posted therein in a legible manner and be maintained current as of the date of the last contact with that authority. (c) The responsible highway authority shall be contacted immediately when any change is made in the crossing warning system that affects the operation of the highway traffic signal system.”

This concept has been addressed by the Secretary's Technical Working Group. A form similar to that suggested by Iowa DOT has been developed and is being distributed throughout the country for placement in both grade crossing signal cases and in highway traffic signal cases. The form states in part: “Highway-Rail Grade Crossing Warning System and Highway Traffic Signals are Interconnected. BEFORE MODIFICATION is made to any operation which connects to or controls the timing of an active railroad warning system and/or timing and phasing of a traffic signal the appropriate party(ies) shall be notified and, if necessary, a joint inspection conducted.” The form contains the U.S. DOT/AAR Crossing Number together with contact names and phone numbers for the appropriate highway agency and railroad. This voluntary approach has been working very well and there does not appear to be any need to regulate this issue.

These amendments have been evaluated in accordance with existing policies and procedures. Because these amendments are primarily technically oriented and generally reduce the regulatory burden on railroads, FRA has concluded that this revisions do not constitute a significant rule under either Executive Order 12866 or DOT's regulatory policies and procedures.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) requires a review of rules to assess their impact on small entities. FRA certifies that this rule will not have a significant impact on a substantial number of small entities. There are no substantial economic impacts for small units of government, businesses, or other organizations.

These amendments to part 234 do not change any information collection requirements.

FRA has evaluated these regulations in accordance with its procedure for ensuring full consideration of the potential environmental impacts of FRA actions, as required by the National Environmental Policy Act (42 U.S.C. 4321 et seq.) and related directives. FRA has determined that this final rule is not a major FRA action requiring the preparation of an environmental impact statement or environmental assessment.

FRA believes it is in compliance with Executive Order 13132. This final rule will not have a substantial 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. This final rule will not have federalism implications that impose substantial direct compliance costs on State and local governments.

Astragalus holmgreniorum (Holmgren milk-vetch) was first collected as a scientific specimen in 1941 by Melvin Ogden. Rupert Barneby and Noel and Patricia Holmgren rediscovered the species in 1979. Barneby (1980) recognized the species as a unique taxon occurring in a localized area on the Arizona-Utah border, and named it for its co-discoverers. Astragalus ampullarioides (Shivwits milk-vetch) was first collected near Shem in Washington County, Utah, by Duane Atwood in 1976. The species was originally described by Stanley Welsh (1986) as a variety of A. eremiticus. Barneby (1989) questioned the taxonomic significance of the species and submerged A. eremiticus var. ampullarioides within typical A. eremiticus. Later research work by Harper and Van Buren (1998) and Stubben (1997) demonstrated significant genetic and ecological differences between typical A. eremiticus and A. eremiticus var. ampullarioides. Welsh (1998) revised the species' taxonomy elevating the taxon to full species status as A. ampullarioides. Both species are narrowly distributed Mojave Desert endemics restricted to the immediate vicinity of St. George, Utah.

A member of the pea family (Fabaceae), Astragalus holmgreniorum is a stemless herbaceous (non-woody) perennial that produces leaves and small purple flowers in the spring, both of which die back to its roots after the flowering season. The plant's pinnately compound leaves (leaves arranged on opposite side of the stem in a row) arise directly from the root crown. The leaves are pressed close to the ground, and are 4 to 13 centimeters (cm) (1.5 to 5.1 inches (in)) long, and have 9 to 15 leaflets. The leaflets are 0.8 to 1.6 cm (0.3 to 0.6 in) long and are broadly obovate (oval with the narrow end towards the base of the leaf) in shape. The flowers of A. holmgreniorum are 1.8 to 2.4 cm (0.7 to 0.9 in) long, and 0.6 to 0.9 cm (0.2 to 0.4 in) wide and have the distinctive papilionaceous flower shape of a legume (pea-like flower with five petals that include a large petal on top enclosing two lateral petals and two smaller lower petals). The flowers are borne in a raceme inflorescence (flowers occur along a stalk), commonly with 6 to 16 flowers. The peduncle (flower stalk) is 2 to 8.5 cm (0.8 to 3.6 in) long and arises directly from the root crown. The peduncle is erect during anthesis (period the flower is open) and is prostrate when the plant's in fruit (Barneby 1980; 1989; Welsh, et al. 1987; Stubben 1997). The fruits are pods 3 to 5 cm (1 to 2 in) long and 0.6 to 0.9 cm (0.2 to 0.4 in) across. The pods retain seeds even after the pods fully open up along the margin. With age, each pod eventually dries out and opens up at both the top and bottom ends (Barneby 1989; Stubben 1997).

Astragalus holmgreniorum grows on the shallow, sparsely vegetated soils derived primarily from the Virgin limestone member of the Moenkopi Formation. The species is a principal member of a warm-desert shrub vegetative community dominated by the following perennial shrubs—Acamptopappus sphaerocephalus (desert goldenhead), Ambrosia dumosa (white burrobush), Krameria parvifolia (range ratany), and Lycium andersonii (Anderson wolfberry). In addition, plant species associated with A. holmgreniorum include several perennial and annual forbs and grasses; most significant are the introduced weedy species—Bromus rubens (foxtail brome), Erodium cicutarium (storksbill), and Malcolmia africana (African mustard) (Stubben 1997; Armstrong and Harper 1991; Van Buren 1992; Harper and Van Buren 1998, 2000b).

Only three populations of Astragalus holmgreniorum are known. The species primary population exists on the Arizona (Mohave County) and Utah (Washington County) border approximately 11 kilometers (km) (7 miles (mi)) south of the center of St. George, Utah (Stubben 1997). This population is fragmented by Interstate Highway 15, areas of urban development, and spotty natural habitat occurrences. The number of individual plants in all the species' populations varies considerably from year to year. This population averages about 9,000 to 10,000 plants in years with wet winters (Stubben 1997; R. Van Buren, Utah Valley State College, Orem, Utah, pers. comm. 1998). The second population is south of the town of Santa Clara about 8 km (5 mi) west of St. George. This population consists of 2 sites whose total numbers average about 1,000 individual plants (Stubben 1997; Van Buren 1992; R. Bolander, Bureau of Land Management, Salt Lake City, Utah, pers. comm. 2000). The third population consists of about 30 plants, and is located in Purgatory flat approximately 15 km (9 mi) east of St. George (Stubben 1997; R. Bolander, pers. comm. 2000). The small number of populations and restricted habitat of this species make it vulnerable to human-caused and natural environmental disturbances. Urban expansion of St. George and highway and power line construction have destroyed significant portions of the species' potential habitat and threaten additional occupied habitat. The species also is threatened by ORV use, displacement by exotic weeds, mineral exploration and development (Harper 1997, Stubben 1997, Van Buren and Harper 2000b).

Astragalus ampullarioides (Shivwits milk-vetch) is a perennial, herbaceous plant that is considered a tall member of the pea family, although some plants appear shorter because of grazing impacts. Stems may grow along the ground or to a height of 20 to 50 cm (8 to 20 in). However, ungrazed flowering stems may attain a height of 1 meter (40 in). Its leaves are pinnately compound, 4 to 18 cm (1.6 to 7.1 in) long, and have 11 to 23 elliptical leaflets. Each plant produces about 45 small cream-colored flowers about 2 cm (0.8 in) long on a single stalk in the spring. Seeds are produced in small pods, and the plant dies back to its root crown after the flowering season. The fruit is a short, broad pod between 0.8 and 1.5 cm (0.3 to 0.6 in) in length and 0.6 to 1.2 cm (0.2 to 0.5 in) in width (Barneby 1989; Welsh 1986, 1998; Welsh, et al. 1987).

Differences between Astragalus ampullarioides and typical A. eremiticus, which also is found in Washington County, Utah, are apparent from the following morphological and ecological characteristics—(1) A. ampullarioides has more flowers in each inflorescence, (2) A. ampullarioides has more elongated flower stalks, (3) A. ampullarioides has wider pods, (4) A. ampullarioides has taller plants, (5) A. ampullarioides has hollow stems, while A. eremiticus stems are solid, and (6) A. ampullarioides plants are highly palatable to grazing animals, while typical A. eremiticus is seldom if ever eaten (Barneby 1989; Welsh 1986, 1998; Welsh, et al. 1987; Van Buren 1992; Harper and Van Buren 1998). The variation between the two species also is apparent at the genetic level. The DNA analysis of Astragalus species have shown significant differences in genetic markers between A. ampullarioides and A. eremiticus (Stubben 1997).

Astragalus ampullarioides grows only on purple clay soils derived from the Petrified Forest member of the Chinle geological formation. The species is known from five separate sites in Washington County, Utah. These sites are distributed on a narrow band of the exposed Chinle formation over a distance of about 72 km (45 mi) near St. George, Utah. These 5 populations contain a total of approximately 1,000 individual plants (R. Van Buren, pers. comm. 1998, 2000). Two of the five populations occur near Shivwits on the western edge of the species range. One population occurs on the Shivwits Indian Reservation and contains about 50 individual plants (L. England, pers. comm. 1999); the other population occurs on Bureau of Land Management (BLM) land and contains about 135 individual plants (Utah Natural Heritage Program 1999). Two other populations occur near Harrisburg Junction on the eastern edge of the species range. One of these populations with 4 disjunct sites occurs on a mixture of State and BLM lands and contains about 300 individual plants (L. England, pers. comm. 1999, Utah Natural Heritage Program 1999, Van Buren, pers. comm. 2000). The second population in the Harrisburg area is located within a rapidly expanding commercial, recreational, and residential development. This population contained over 1,000 individuals in 1995 (England, pers. comm. 1995) and had declined to about 200 individual plants in 1998 (Utah Natural Heritage Program 1999). This population declined to less than 50 individuals in 2000 (England, pers. comm. 2000). Most of its habitat has been converted to a golf course. The fifth population occurs in the southwest corner of Zion National Park with a population estimated at 300 to 500 individuals (Harper, pers. comm. 2000; Van Buren, pers. comm. 2000). Native plant species normally associated with A. ampullarioides include Dichlostemma pulchellum (beautiful bluedicks), Lotus humistratus (birdsfoot trefoil), Gutierrezia microcephala (snakeweed), Calochortus flexuosus (mariposa lily), and several other Mojave Desert plants. Currently the most significant plant species associated with A. ampullarioides are the introduced weedy species Bromus rubens (foxtail brome), B. tectorum (cheat grass), Erodium cicutarium (storksbill), and Malcolmia africana (African mustard) (Armstrong and Harper 1991; Van Buren 1992, 1998; Harper and Van Buren 1998, 2000a).

Astragalus ampullarioides is threatened by the same activities as A. holmgreniorum. In addition, A. ampullarioides is heavily grazed by most wild and domestic herbivores, and one of its five populations is threatened by activities associated with clay quarry mining and unauthorized waste disposal (Harper 1997). A. ampullarioides is restricted to clay soils derived from outcrops of the Chinle formation, which naturally limits its potential habitat and population (Van Buren and Harper 2000a). The populations of both species fluctuate significantly year to year primarily due to extreme variations in local precipitation. The population numbers cited above reflect the highest levels observed since 1992; in an average precipitation year populations will be about half of that cited above, while drought-year population numbers will be 10 percent or less of the maximum observed levels (Van Buren and Harper 1998, 2000a; Van Buren 1999; R. Bolander, pers. comm. 2000; J. Anderson, Bureau of Land Management, Phoenix, Arizona, pers. comm. 2000).

Section 12 of the Act (16 U.S.C. 1533 et seq.) directed the Secretary of the Smithsonian Institution to prepare a report on those plants considered to be endangered, threatened, or extinct in the United States. This report, designated as House Document No. 94-51, was presented to Congress on January 9, 1975. We published a notice in the July 1, 1975, Federal Register (40 FR 27823) announcing our decision to treat the Smithsonian report as a petition within the context of section 4(c)(2) (now section 4(b)(3)) of the Act, and our intention to review the status of those plants.

The July 1975 notice was updated by a notice in the Federal Register on December 15, 1980 (45 FR 82480). On November 28, 1983, we amended the 1980 notice (48 FR 53640) and added Astragalus holmgreniorum as a category 2 candidate species. Category 2 candidates were defined as taxa for which information indicated that proposing to list the taxa as endangered or threatened was possibly appropriate but substantial data on biological vulnerability and threats were not currently known or on file to support a listing proposal. A later Notice of Review published on February 21, 1990 (55 FR 6185), maintained A. holmgreniorum as a category 2 species and included A. eremiticus var. ampullarioides (a synonym of A. ampullarioides) as a category 2 species.

Based on new biological and threat information (Armstrong and Harper 1991; Van Buren 1992) we identified Astragalus holmgreniorum as a category 1 candidate in the 1993 plant Notice of Review (58 FR 51133). At that time, category 1 candidates comprised taxa for which we had significant biological information to propose the species as endangered or threatened.

In the February 28, 1996, Notice of Review (61 FR 7596), we ceased using the category designations for candidates and included both Astragalus holmgreniorum and A. ampullarioides (A. eremiticus var. ampullarioides) as 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 June 2, 1999, we received a petition from Peter Galvin of the Southwest Center for Biological Diversity, Tucson, Arizona, to list both Astragalus holmgreniorum and A. ampullarioides as endangered species under the Act. The petition specified endangered status because of the rarity of the plants and the significant population and individual losses of both plants. The petition also requested designation of critical habitat concurrent with the listing. Inasmuch as A. holmgreniorum and A. ampullarioides are currently designated candidate species with assigned listing priorities of two and three, respectively, we consider them already under petition and covered by a warranted but precluded finding. We responded to this petition on June 14, 1999, notifying the petitioner that our Endangered Species Petition Management Guidance issued in July 1996 considers a petition for a candidate species as redundant, and as such will be treated as a second petition. We also notified the petitioner that preparation of a proposed rule for listing of A. holmgreniorum and A. ampullarioides was ongoing and would be published in the Federal Register in the near future.

On April 12, 2000, we published a proposed rule to list Astragalus holmgreniorum and A. ampullarioides as endangered species in the Federal Register (65 FR 19728). The comment period was open until June 12, 2000. With the publication of this final rule, we now determine that A. holmgreniorum and A. ampullarioides are endangered.

We have updated this rule to reflect any changes in distribution, status, and threats since publication of the proposed rule and to incorporate information obtained during the public comment period. This additional information did not alter our decision to list these species.

We have reviewed all written and oral comments received during the comment period and have incorporated updated data and information into appropriate sections of this rule. We have organized substantive comments concerning the proposed rule into specific issues. We grouped comments of a similar nature or subject matter into a number of broader issues. These issues and our response to each are presented in the subsections below.

In the April 12, 2000, proposed rule in the Federal Register (65 FR 19728) and associated notifications, we requested all interested parties to submit factual reports or information that might contribute to the development of a final rule. We contacted and requested comments from all appropriate Federal and State agencies, City and County governments, scientific organizations, and other interested parties. We published newspaper notices requesting public comment on the proposed rule in the following newspapers—the Salt Lake Tribune and the Deseret News, both published in Salt Lake City, Utah, with general circulation throughout Utah, on May 6, 2000; The Spectrum, published in St. George, Utah, with circulation in Washington County, Utah, on April 28, 2000; and The Kingman Daily Miner, published in Kingman, Arizona, with circulation in Mohave County, Arizona, on May 9, 2000. No public hearing requests were made pursuant to the April 12, 2000, proposed rule. However, at the invitation of the Shivwits Band of the Paiute Tribe, the Washington County Commission, and the St. George Area Chamber of Commerce, we met with those groups respectively on May 3, 2000, May 18, 2000, and June 7, 2000, and answered and addressed the questions and concerns of those groups concerning the impact of the proposed listing on regional land use and urban development plans in the St. George area.

We received a total of five comments (one from private organization, two from a Federal agency, one from a State agency, and one from a local government) during the proposed rule's open comment period from April 12, 2000 to June 12, 2000. Three comments were in general agreement with and supportive of our proposal. One of these provided additional information on the status of the species and made suggestions to clarify our proposed rule. One comment was a request for continued consultation on their actions affecting one of these species. One comment raised a series of issues related to the listing of Astragalus holmgreniorum and A. ampullarioides and is discussed below. A summary of comments received in response to the proposed rule follows.

Issue 1. Will actions affecting unoccupied potential habitat of Astragalus holmgreniorum and A. ampullarioides invoke the need for formal interagency consultation under the provisions of section 7 of the Act?

Response—We do not consult on projects that do not affect listed species or their critical habitat. We have not yet delineated critical habitat for Astragalus holmgreniorum and A. ampullarioides. Actions affecting only unoccupied, potential habitat for the species will not trigger formal consultation unless such areas are ultimately designated as critical habitat.

Issue 2. How will land exchanges for the Red Cliffs Desert Reserve (Mojave desert tortoise) impact these two species? Can BLM proceed with the exchanges? Is the land exchange subject to formal consultation? Will the exchange be halted completely?

Response—The statement in the proposed rule concerning the impact of the Red Cliffs Desert Reserve on Astragalus holmgreniorum and A. ampullarioides referred to urban development in the local area in general. The presence of the tortoise reserve, established as the primary mitigation measure under the Washington County Habitat Conservation Plan, approved in 1996, will accelerate development in a southern direction from St. George and other surrounding cities. Thus, the reserve may hasten development in habitat occupied by both of these plant species. However, some land acquisition and protection associated with the reserve will improve recovery prospects for A. ampullarioides. Land exchanges are one mechanism used by the BLM to acquire tortoise habitat within the reserve. All administrative land exchanges are subject to section 7 interagency consultation under the Act. Land exchanges that could result in loss of habitat for either plant species will be evaluated, and neither the Service nor the BLM will approve any exchanges that jeopardize the future existence of either species. Currently, the BLM, as a matter of policy, does not exchange lands occupied by either A. holmgreniorum and A. ampullarioides for private or State lands within the boundaries of the Reserve. Land exchanges that do not adversely affect A. holmgreniorum and A. ampullarioides will proceed as normal.

Issue 3. Habitat conditions favorable to the growth of Astragalus holmgreniorum and A. ampullarioides are more widespread than the actual known populations. Listing should be delayed until the true extent of the populations is determined.

Response—There have been extensive surveys for both species within and far beyond their known habitat. While these species may occupy other currently unknown sites, it is unlikely that unknown sites would be of significant size to materially change the current status of either species.

In accordance with our policy published in the Federal Register on July 1, 1994 (59 FR 34270), we solicited the expert opinion of four appropriate and independent specialists regarding pertinent scientific or commercial data and assumptions relating to the supportive biological and ecological information for Astragalus holmgreniorum and A. ampullarioides. The purpose of this review is to ensure that listing decisions are based on scientifically sound data, assumptions, and analyses, including input from appropriate experts and specialists. Three specialists responded to our request for peer review of this listing action and supported the listing and our analysis of the biological and ecological situation facing these species. In addition, two reviewers provided additional biological, ecological, and demographic information concerning these species. That information was incorporated into this final rule.

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

A. The present or threatened destruction, modification, or curtailment of its habitat or range. The entire population of Astragalus holmgreniorum and most of the population of A. ampullarioides are vulnerable to habitat loss and extirpation due to urban growth and development in the St. George area of Washington County, Utah. St. George is a rapidly growing city. The population of the St. George area has grown from about 48,000 in 1990 to over 75,000 in 1999, and is projected to double within the next 20 years. The construction of residential housing, commercial buildings, and recreational facilities has destroyed occupied and potential habitat of both species during the last 5 years (Harper 1997; Stubben 1997; R. Van Buren, pers. comm. 1998, 2000; K. Harper, pers. comm. 2000). The continued demand for land for urban expansion of Washington County communities threatens all populations of A. holmgreniorum and the central populations of A. ampullarioides (Harper 1997; Stubben 1997). Residential and commercial development, along with associated construction of new roads, highways, electric power transmission lines, pipelines, airports, residential and commercial buildings, recreational facilities such as golf courses, and maintenance of existing roads will encroach on and threaten the habitat of both species.

Habitat degradation from ORV use is increasing within both species' habitats. Both Astragalus holmgreniorum and A. ampullarioides are in the same general area as the listed plant species Arctomecon humilis (dwarf bear-poppy), which has been severely impacted by ORV use and urban development (Harper 1997; R. Van Buren, pers. comm. 1998). The Utah Army National Guard conducts military training on State of Utah lands within the occupied habitat of A. holmgreniorum between the current urbanized center of St. George and the Utah-Arizona border (D. Johnson, Utah Army National Guard, pers. comm. 2000). This activity has destroyed individual A. holmgreniorum plants and has degraded the species' habitat (Van Buren, pers. comm. 2000).

Conservation measures to protect the recently listed Mohave Desert tortoise (Gopherus agassizii) population from development may have caused a change in urbanization patterns that may lead to an increase in urban development and encroachment into the habitat of Astragalus holmgreniorum and A. ampullarioides (Stubben 1997; Harper 1997; D. Pietrzak, BLM, St. George, Utah, pers. comm. 1993). Patterns of urban, commercial, and residential expansion north of St. George City were affected by conservation efforts for the Desert tortoise including the Washington County Habitat Conservation Plan. Significant areas of potential community growth in the St. George area, especially between the city and the Arizona border, are within the occupied habitat of A. holmgreniorum and A. ampullarioides.

The presence of the tortoise reserve, established as the primary mitigation measure under the Washington County Habitat Conservation Plan approved in 1996, will accelerate development in a southern direction from St. George and other surrounding cities. Thus, the reserve may hasten development in habitat occupied by both plant species (E. Owens, U.S. Fish and Wildlife Service, Salt Lake City, Utah, pers. comm. 2000).

In Utah, occupied Astragalus holmgreniorum and A. ampullarioides habitat occurs on Federal (BLM), State of Utah, Tribal (Shivwits Band of the Paiute Tribe), and private land. In Arizona, A. holmgreniorum is restricted to State of Arizona lands immediately adjacent to the Utah border. Private and State lands may be subject to land use changes such as an increase in urban development. Federal lands with populations of A. holmgreniorum may be subject to exchange or sale to the States or private parties. The State of Utah had proposed to the BLM to acquire lands that harbor the largest portion of the A. holmgreniorum population in exchange for occupied desert tortoise habitat north of St. George in Washington County (Stubben 1997; D. Pietrzak, pers. comm. 1993). A private land developer has proposed to develop much of the Utah portion of the A. holmgreniorum habitat for a planned residential community. A major highway is proposed for construction through the A. holmgreniorum habitat between St. George and the Arizona border. A proposed planned community development near Harrisburg Junction has significantly reduced and has the potential to destroy one of the two central A. ampullarioides populations (Rosenberg Associates 1999). Another planned community development near Atkinville has significantly impacted the main A. holmgreniorum population, and projected community development south of Santa Clara has the potential to significantly impact the species' northwestern population (R. Bolander, pers. comm. 2000). An electric power transmission line is proposed to pass through the two western A. ampullarioides populations. A second electric power transmission line is proposed to pass through its eastern population. Gypsum mining operations occur adjacent to occupied A. holmgreniorum habitat south of St. George. An existing clay pit now being used as an unauthorized waste disposal area occurs adjacent to occupied A. ampullarioides habitat east of St. George. Both of these mining-related activities have the potential to destroy both A. holmgreniorum and A. ampullarioides habitat.

B. Overutilization for commercial, recreational, scientific, or educational purposes. Astragalus holmgreniorum and A. ampullarioides have no known commercial, recreational, or scientific use at this time. There is no evidence of over collection by botanists or horticulturists at this time.

C. Disease or predation. We have no information to indicate that diseases threaten the continued survival of either Astragalus holmgreniorum or A. ampullarioides.

Astragalus ampullarioides is extremely palatable to both wildlife and domestic livestock, but A. holmgreniorum is not. The two western A. ampullarioides populations currently are overgrazed, often to the point that reproduction is forgone due to the loss of the entire flower and fruit of virtually every plant in the population (Harper 1997, Harper and Van Buren 1998). In addition, overgrazing over a period of time can cause a shift in the plant communities to favor faster growing invasive alien plants, which has a negative effect on both A. homgreniorum and A. ampullarioides.

D. The inadequacy of existing regulatory mechanisms. No Federal or State laws or regulations directly protect Astragalus holmgreniorum and A. ampullarioides or their habitat. However, the BLM Manual 6840 states that “The BLM shall carry out management, consistent with multiple use, for the conservation of candidate species and their habitats and shall ensure that actions authorized, funded, or carried out do not contribute to the need to list any of these species as Threatened or Endangered.” The BLM has incorporated its intent to conserve these species into the “Dixie Resource Area Proposed Management Plan and Final Environmental Impact Statement” (Bureau of Land Management 1998). However, the location of these species in areas valued for future urban expansion makes the long-term security of their habitat, even on Federal lands, uncertain. There is no legal protection for either species on State of Arizona or State of Utah lands or on private property.

E. Other natural or manmade factors affecting its continued existence. Past habitat disturbance has caused the proliferation of introduced annual weeds into both species' occupied habitat (Harper 1997, Van Buren and Harper 2000a, 2000b). Foxtail brome, cheatgrass, storksbill, and African mustard are now the dominant species within the plant communities of both Astragalus holmgreniorum and A. ampullarioides (Stubben 1997; Harper and Van Buren 1998, 2000; Van Buren 1999). Both species are vulnerable to displacement by introduced weeds (Harper 1997; Harper and Van Buren 1998; Stubben 1997; Van Buren 1999). Concurrent with the establishment of these invasive species is further habitat modification and perhaps permanent change of the vegetative community caused by the introduction of fire into the Mojave Desert ecosystem. Cheatgrass and foxtail brome grow in densities and dry up sufficiently to carry fire over large areas. The native Mojave Desert vegetation is not adapted to a frequent fire regimen (R. Bolander, pers. comm. 2000).

Pollination of both Astragalus holmgreniorum and A. ampullarioides is a long-term concern. Both species are pollinated by native solitary ground-dwelling bees (V. Tepidendo, U.S. Agricultural Research Service, Bee Biology Laboratory, Utah State University, Logan, Utah pers. comm. 2000; R. Bolander, pers. comm. 2000). Fragmented, isolated populations restrict pollinator exchange between occupied population sites. This situation may cause genetic isolation, which may potentially lead to inbreeding and local extirpation of isolated populations. Urban expansion and associated impacts may directly and indirectly affect pollinators through loss of pollinator habitat and increased pesticide use (R. Bolander, pers. comm. 2000).

Any factor preventing seed set or seed germination, in addition to natural abiotic factors (i.e., precipitation and temperature), will adversely affect both species' viability (R. Bolander, pers. comm. 2000). These factors include reduced pollination and weed competition.

Both species exhibit varying high and low population counts. However, trend data show that, even with the highs, the general total populations are declining (R. Bolander, pers. comm. 2000). A long-term trend study indicates a significant reduction in the population numbers of A. holmgreniorum at the BLM's monitoring plot on state land in Arizona (J. Anderson, pers. comm. 2000). Both species are relatively short-lived (about 4 years for A. holmgreniorum and 6 years for A. ampullarioides) and depend on soil seed banks to maintain the long-term viability of their populations (R. Bolander pers. comm. 2000; K. Harper pers. comm. 2000, R. Van Buren pers. comm. 2000).

Because of the low numbers of individuals, low number of populations, and restricted habitats of both Astragalus holmgreniorum and A. ampullarioides, these plants are vulnerable to human disturbances, which may increase the negative impacts of natural disturbances to populations of these species. The numbers of individuals and populations are sufficiently low that future losses may result in the loss of population viability. The extremely small and disjunct populations of A. ampullarioides may be vulnerable to a loss of genetic viability (Harper 1997; Harper and Van Buren 1998).

We have carefully assessed the best scientific and commercial information available concerning the past, present, and future threats faced by these species in finalizing this rule. Threats to Astragalus holmgreniorum and A. ampullarioides, including development of land for residential and urban use, habitat modification from human disturbances, competition with non-native plant species, and impacts from mining and grazing, imperil the continued existence of these species. Much of the habitat where these species occur is suitable for development and for modification by mining and grazing, and is unprotected from these threats. Because of the high potential of these threats to result in the extinction of both species, the preferred action is to list A. holmgreniorum and A. ampullarioides as endangered. The Act defines an endangered species as one in danger of extinction throughout all or a significant portion of its range. Endangered status reflects the vulnerability of these species to factors that may adversely affect these species and their extremely limited habitat.

Critical habitat is defined in section 3, paragraph (5)(A) of the Act as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection; and specific areas outside the geographical area occupied by a species at the time it is listed in accordance with the provisions of section 4 of the Act, upon a determination by the Secretary that such areas are essential for the conservation of the species. “Conservation” means the use of all methods and procedures needed to bring the species to the point at which listing under the Act is no longer necessary.

Critical habitat designation directly affects only Federal agency actions through consultation under section 7(a)(2) of the Act. Section 7(a)(2) requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of a listed species or destroy or adversely modify its critical habitat.

Section 4(a)(3) of the Act, as amended, and our implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, we designate critical habitat at the time the species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) 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 activity and the 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.

In the proposed rule, we indicated that designation of critical habitat was not prudent for Astragalus holmgreniorum and A. ampullarioides because of a concern that publication of precise maps and descriptions of critical habitat in the Federal Register could increase the vulnerability of these species to incidents of collection and vandalism. We also indicated that designation of critical habitat was not prudent because we believed it would not provide any additional benefit beyond that provided through listing as endangered.

In the last few years, a series of court decisions have overturned Service determinations that designation of critical habitat for a variety of species would not be prudent (e.g., Natural Resources Defense Council v. U.S. Department of the Interior 113 F. 3d 1121 (9th Cir. 1997); Conservation Council for Hawaii v. Babbitt, 2 F. Supp. 2d 1280 (D. Hawaii 1998)). Based on the standards applied in those judicial opinions, we have reexamined the question of whether critical habitat for Astragalus holmgreniorum and A. ampullarioides would be prudent.

As with other species we list, we have the concern that unrestricted collection, vandalism, or other disturbances could be exacerbated by the publication of critical habitat maps and further dissemination of locational information. However, we have examined the evidence available for Astragalus holmgreniorum and A. ampullarioides and have not found specific evidence of taking, vandalism, collection, or trade of these species or any similarly situated species. Consequently, consistent with applicable regulations (50 CFR 424.12(a)(1)(i)) and recent case law, we do not expect that the identification of critical habitat will increase the degree of threat to these species of taking or other human activity.

In the absence of a finding that critical habitat would increase threats to these species, if any benefits would result from a critical habitat designation, then a prudent finding is warranted. In the case of both of these species, designation of critical habitat may provide some benefits. The primary regulatory effect of critical habitat is the section 7 requirement that Federal agencies refrain from taking any action that destroys or adversely modifies critical habitat. While a critical habitat designation for habitat currently occupied by these species would not be likely to change the section 7 consultation outcome because an action that destroys or adversely modifies such critical habitat also would be likely to result in jeopardy to these species, in certain instances, section 7 consultation might be triggered only if critical habitat is designated. Examples could include some actions in unoccupied habitat or occupied habitat that may become unoccupied in the future. Designating critical habitat may provide some educational or informational benefits. Therefore, we find that critical habitat is prudent for both Astragalus holmgreniorum and A. ampullarioides.

As explained in detail in the Final Listing Priority Guidance for Fiscal Year 2000 (64 FR 57114), our listing budget is currently insufficient to allow us to immediately complete all of the listing actions required by the Act. We focus our efforts on those listing actions that provide the most conservation benefit. Deferral of the critical habitat designation for these species will allow us to concentrate our limited resources on higher priority critical habitat and other listing actions, without delaying the final listing decision for both Astragalus holmgreniorum and A. ampullarioides. We will develop a proposal to designate critical habitat for Astragalus holmgreniorum and A. ampullarioides as soon as feasible, considering our workload priorities and available funding. Unfortunately, for the immediate future, most of Region 6's listing budget must be directed to complying with numerous court orders and settlement agreements, as well as due and overdue final listing determinations.

Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing can encourage and result in public awareness and conservation actions by Federal, State, Tribal (Shivwits Band of the Paiute Tribe), and local agencies, private organizations, and individuals. The Act provides for possible land acquisition and cooperation with the States and requires that recovery actions be carried out for all listed species. Funding may be available through section 6 of the Act for the States to conduct recovery activities. The protection required by Federal agencies and prohibitions against certain activities involving listed plants are discussed, in part, below.

Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is proposed or designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(1) of the Act requires Federal agencies to use their authorities to further the purposes of the Act by carrying out programs for listed species. Section 7(a)(2) requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of a listed species or destroy or adversely modify its designated critical habitat. If a Federal action may affect a listed species or its designated critical habitat, the responsible Federal agency must enter into formal consultation with us.

Considerable portions of the habitat of both Astragalus holmgreniorum and A. ampullarioides are on lands under Federal jurisdiction managed by the BLM. The BLM is responsible for ensuring that all activities and actions on lands that they manage are not likely to jeopardize the continued existence of A. holmgreniorum and A. ampullarioides. Such activities include grazing, mining, and recreational management on Federal lands. Proposed highway and power line projects within the habitat of both species will require Federal permits from the Federal Highway Administration and Federal Energy Regulatory Commission. These agencies, also, must ensure that actions which they permit are not likely to jeopardize the continued existence of both species. In addition, sections 2(c)(1) and 7(a)(1) of the Act require Federal agencies to use their authorities in furtherance of the purposes of the Act to carry out conservation programs for endangered and threatened species.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered plants. All trade prohibitions of section 9(a)(2) of the Act, implemented by 50 CFR 17.61 for endangered plants, will apply. These prohibitions, in part, make it illegal for any person subject to the jurisdiction of the United States to import or export, transport in interstate or foreign commerce in the course of a commercial activity, sell or offer for sale in interstate or foreign commerce, or remove these species from areas under Federal jurisdiction. In addition, for plants listed as endangered, the Act prohibits the malicious damage or destruction on areas under Federal jurisdiction and the removal, cutting, digging up, damaging, or destruction of such plants in knowing violation of any State law or regulation, or in the course of a violation of State criminal trespass law. Certain exceptions to the prohibitions apply to our agents and agents of State conservation agencies.

The Act and 50 CFR 17.62 and 17.63 also provide for the issuance of permits to carry out otherwise prohibited activities involving endangered and threatened plant species under certain circumstances. Such permits are available for scientific purposes and to enhance the propagation or survival of the species. We anticipate that few trade permits would be sought or issued for Astragalus holmgreniorum and A. ampullarioides because these species are not common in the wild and are unknown in cultivation.

It is our policy, published in the Federal Register (59 FR 34272) on July 1, 1994, to identify to the maximum extent practicable those activities that would or would not likely constitute a violation of section 9 of the Act if a species is listed. The intent of this policy is to increase public awareness of the effect of the species' listing on proposed and ongoing activities within its range. Collection of listed plants or activities that would damage or destroy listed plants on Federal lands are prohibited without a Federal endangered species permit. Such activities on non-Federal lands would constitute a violation of section 9 of the Act if they were conducted in knowing violation of State law or regulation, or in the course of violation of State criminal trespass law. Otherwise, such activities would not constitute a violation of the Act on non-Federal lands. Conducting commerce with this species is also prohibited.

Questions regarding whether specific activities, such as changes in land use, constitute a violation of section 9 should be directed to the Utah Field Office (see ADDRESSES section). Requests for copies of the regulations regarding listed species and inquiries about prohibitions and permits may be addressed to—Regional Director, U.S. Fish and Wildlife Service, P.O. Box 25486, Denver Federal Center, Denver, Colorado 80225-0486.

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

This rule does not contain any collections of information that require Office of Management and Budget (OMB) approval under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An information collection related to the rule pertaining to permits for endangered and threatened species has OMB approval and is assigned clearance number 1018-0094. This rule does not alter that information collection requirement. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number. For additional information concerning permit and associated requirements for endangered species, see 50 CFR 17.22.

The primary author of this proposed rule is John L. England (see ADDRESSES section).