On November 15, 1999, the Food and Nutrition Service (FNS) published an interim rule for comment (64 FR 61770), to update the meal requirements for infants less than 12 months of age in the National School Lunch Program, the School Breakfast Program, and the Child and Adult Care Food Program. The rule recognized well-established scientific evidence demonstrating that breastmilk is the optimal source of nutrition for infants during the entire first year of life, and that the only appropriate alternative to breastmilk is iron-fortified infant formula.

The interim rule eliminated the option of serving whole cow's milk to infants less than 12 months of age, so that reimbursable infant meals must include either breastmilk or iron-fortified infant formula. It allowed reimbursement for meals containing only breastmilk, and addressed those situations when some breastfed infants may consume less than the minimum serving of breastmilk for their age group. The rule also amended the Child and Adult Care Food Program's definition of “infant formula” so that it would conform to the definition used in the school meal programs' regulations. These amendments became effective on December 15, 1999.

Technical corrections to the infant meal pattern were published in a final rule on December 27, 1999 (64 FR 72257). FNS is now issuing a final regulation, based on the evidence described in the interim rule, a review of written comments submitted by the public in response to that rule, and our operational experience in implementing these changes. This final rule discusses the comments we received, and codifies the small number of revisions and corrections into 7 CFR 210.10 of the National School Lunch Program regulations, 7 CFR 220.8 of the School Breakfast Program regulations, and 7 CFR 226.20 of the regulations for the Child and Adult Care Food Program.

The infant meal pattern is used in schools, residential child care institutions, child care centers, family day care homes, and homeless shelters participating in the Child Nutrition Programs. Throughout this preamble, the term “caregiver” refers to the different types of facilities that provide meal services to infants through these programs. The term “Child Nutrition Programs” refers collectively to the National School Lunch Program, the School Breakfast Program, and the Child and Adult Care Food Program (CACFP).

This rule does not directly change the regulations for the Summer Food Service Program at 7 CFR part 225. However, § (section) 225.16(f)(2) of the regulations requires sponsors, approved by their State agencies to serve summer meals to infants, to follow the infant meal pattern requirements in CACFP regulations.

We received a total of 16 written comments, during the 180-day comment period which ended on May 15, 2000. The commenters included three registered dieticians, two CACFP State directors, two sponsoring organization representatives, one independent child care center director, and one day care home provider. The majority of them wrote that they agreed with the amendments and with the scientific evidence described in the interim rule about currently accepted infant feeding practices. Some of them raised questions related to eliminating whole cow's milk from the infant meal pattern, while others were concerned about the decisions we made on allowing reimbursement for breastmilk-only meals.

The interim rule amended the regulations to eliminate the option of serving whole cow's milk to infants less than 12 months of age, so that all reimbursable infant meals must include either breastmilk or iron-fortified infant formula. Five commenters agreed that the rule was an appropriate response to studies demonstrating that consumption of cow's milk during the first year of life prevents optimal nutrient intake and could adversely affect an infant's health.

One commenter questioned how we could mandate breastmilk or infant formula for the entire first year of life, stating that eliminating cow's milk as an option interferes with the choices parents make about feeding their own infants. Again, the decision to require breastmilk or formula is based on scientific evidence that shows that whole cow's milk does not provide the appropriate level of nutrients needed by very young children. The rule eliminated whole cow's milk from the infant meal pattern because it can be detrimental to an infant's health and development.

Two commenters wanted us to acknowledge the exceptions that exist when doctors recommend whole cow's milk for some infants. We recognize that infants have unique dietary needs, and that decisions concerning diet, during this first year of life, are for the infant's health care provider and parents or guardians to make together.

For those reasons, program regulations have traditionally allowed substitutions to accommodate disabilities and other special dietary needs. Thus, a meal containing whole fluid cow's milk and served to an infant less than 12 months of age is eligible for reimbursement if the substitution is authorized, in writing, by a recognized medical authority (physician, physician assistant, nurse practitioner, or other professionals specified by the State agency).

Similarly, if a doctor or other recognized medical authority prescribes a formula, such as low-iron formula, which is not currently listed as an acceptable formula for the Child Nutrition Programs, the meal is eligible for reimbursement. In all cases, a medical statement, which explains what substitution of foods is needed, must be completed and given to the caregiver to keep on file.

We also recognize the special circumstances that exist when a one year old child is weaning from breastmilk or from infant formula to whole cow's milk. When a child is weaned to cow's milk, it is a common practice to provide the infant with both foods at the same meal service, to gradually ease the infant to accept some of the new food.

Unlike breastmilk, infant formula is not an alternative type of milk which can be substituted to meet the fluid milk requirement for the meal pattern or the food-based menu planning alternative for children over the age of one year (source: FNS Instruction 783-7, Revision 1, “Milk Requirement-Child Nutrition Programs”). However, for a reasonable period of transition—of up to one month—meals that contain infant formula may be reimbursable. Thus, for a child older than 13 months, a statement from a recognized medical authority is needed for a meal containing infant formula to be eligible for reimbursement.

The regulations at §§ 210.10(g)(1), 220.8(d)(1), and 226.20(h) specify requirements regarding individual substitutions and exceptions for medical or special dietary needs. Because an infant's dietary needs are more individualized than those of older children, we have added a sentence to the regulations to remind caregivers of the requirements when there are exceptions to the meal pattern. Accordingly, this final rule amends §§ 210.10(n)(3), 210.10(o)(2), 220.8(j)(1), and 226.20(b)(1) to refer caregivers to the procedures that must be followed whenever meal pattern exceptions or substitutions are needed.

The interim rule amended the infant meal pattern to allow reimbursement for meals served to infants that contain breastmilk, even when breastmilk is the only required food component. Eight commenters praised FNS for making breastmilk an integral part of the infant meal pattern.

Because breastmilk is easier for infants to digest and is processed faster than infant formula, one commenter requested that the number of reimbursable meals served to breastfed infants be increased. Although we recognize that the number of feedings to expect for an exclusively breastfed infant may be more than for a formula-fed infant, we do not have statutory authority to change the maximum number of meals reimbursed in any of the Child Nutrition Programs.

Two commenters objected to reimbursing a caregiver for meals containing only breastmilk when the facility does not incur any food costs. While supporting our efforts to promote breastfeeding, and recognizing how breastfeeding improves the nutritional health of infants, they argued that a meal should not be reimbursable unless the caregiver also offers the infant an additional meal component.

We disagree. Although there may not be a food cost, a caregiver incurs allowable costs related to preparing each bottle of breastmilk for feeding, serving it to the infant, and cleaning up after the feeding. As long as the caregiver promotes the infant's consumption of breastmilk and provides a direct service to the infant during the meal service, the regulations allow reimbursement for meals containing only breastmilk.

The interim rule authorized reimbursement for meals containing breastmilk that is bottle-fed by the caregiver. Six of the commenters stated that the interim rule created a disincentive for caregivers to support mother-child breastfeeding, because it does not allow reimbursement for meals fed directly to an infant by the infant's nursing mother, unless the nursing mother is the caregiver.

Again, it is important to remember that the Child Nutrition Programs reimburse caregivers for the costs of serving nutritious meals—including the costs of preparation and clean up—to infants and children enrolled in the food service. We recognize that caregivers provide services when they accommodate mothers who come to their facilities to nurse their infants. However, we believe that the caregiver must not only promote the consumption of breastmilk by the infant, but also provide some type of service directly to the infant, in order to be reimbursed for the infant's meal.

When a mother comes to a facility to nurse her breastfed infant, the service is performed by the infant's mother. The meal is not eligible for reimbursement, because the infant has not received a meal component or any direct service from the caregiver. For this reason, reimbursable meals that include breastmilk fed directly to an infant by the infant's nursing mother must also include at least one component supplied by the caregiver. The caregiver must provide all of the food components in the meal pattern that are not provided by the parent, to receive reimbursement.

In CACFP, meals are also reimbursable when a family day care home provider, who is eligible to claim reimbursement for her own children's meals, nurses her own infant. In this example, the provider physically serves the meal to a child who receives care in her day care home.

Accordingly, this final rule amends §§ 210.10(n)(3), 210.10(o)(2), 220.8(j)(1), and 226.20(b)(1) regarding the reimbursement of meals containing breastmilk or iron-fortified infant formula. It clarifies that breastmilk fed directly by the infant's mother, during a visit to the facility, contributes to a reimbursable meal only when the caregiver supplies at least one component of the infant's meal. It also indicates conditions that affect whether or not a meal containing infant formula would qualify for reimbursement.

Two commenters were concerned about reimbursement of meals that include both breastmilk and infant formula. One of the commenters recommended that if the parent or guardian supplies less than the minimum amount of breastmilk needed for one feeding, all of the breastmilk should be offered at the first meal service, and subsequent meals during the day would contain only infant formula. This final rule permits reimbursement for meals which contain a portion of breastmilk and a complementary feeding of formula, as long as the total number of ounces offered to the infant meets, or exceeds, the minimum amount for the milk component specified in the infant meal pattern.

Under the infant meal pattern, breastmilk and iron-fortified infant formula are interchangeable. We will continue to emphasize the desirability of feeding breastmilk in place of infant formula for the entire first year of life, in the regulations. However, we have amended the infant meal patterns to show that a meal containing both breastmilk and infant formula to fulfill the milk component requirement may qualify for reimbursement. Accordingly, the meal patterns in §§ 210.10(n), 210.10(o), 220.8(j), and 226.20(b) are amended in this final rule to clarify that a serving of the milk component may contain breastmilk or iron-fortified infant formula, or portions of both.

The definition of “milk” in § 226.2 of the CACFP regulations contains a list of acceptable types of fluid milk that may be served to children or adults who receive meals through the Child Nutrition Programs. One commenter believed that some varieties, such as flavored milk, skim milk, and buttermilk, would not be acceptable under the WIC program (Special Supplemental Nutrition Program for Women, Infants and Children) and should not be included.

Some of the varieties of fluid milk may be more appropriate for certain age groups, and less appropriate for others. However, our definition is consistent with the types of fluid milk currently approved as supplemental foods for WIC participants in 7 CFR 246.10, the Food and Drug Administration's standard of identity for milk in 21 CFR part 131, and food labeling guidelines in 21 CFR part 101, Subpart A. Therefore, we do not believe any change in the list of fluid milk varieties, or in the terms used to describe them, is necessary.

In §§ 210.10(o)(1)(i), 220.2(k), and 226.2, we define “infant cereal” as an iron-fortified dry cereal that is “'routinely mixed with breastmilk or iron-fortified infant formula prior to consumption.” One commenter felt that caregivers may interpret this definition to mean that infant cereal is only reimbursable if it is mixed with breastmilk or iron-fortified infant formula.

The definition that appears in the regulations was not intended to limit caregivers to adding only breastmilk or infant formula to infant cereal. Fruit juice or water can also be added to give infant cereal an appropriate consistency. We are not making any changes in the definition of “infant cereal,” because we believe it is flexible enough to accommodate those variations. However, infant cereal mixed with fruit juice should not be served to infants until after the infant has tried the juice and has not had any reactions to it. Caregivers should be aware that the American Academy of Pediatrics recommends waiting until infants are 6 months of age before introducing fruit juice into their diet (source: Pediatrics, Vol. 107, No. 5, pp. 1210-1213).

An issue that generated questions from program participants concerned optional components in the infant meal pattern, and how we ensure that infants always receive reimbursable meals that are appropriate for their stage of development. The introductory text found in §§ 210.10(o)(2), 220.8(j), and 226.20(b) of the regulations advises that, “* * * For infants 4 through 7 months of age, solid foods are optional and should be introduced only if the infant is developmentally ready * * *.”

An infant's development does not always match the infant's chronological age. By offering a range of portion sizes and optional foods, the infant meal pattern acknowledges that infants grow at different rates, and that some infants will be developmentally ready for solid foods earlier, or later, than others. Some food items, such as fruits, vegetables, and cereal, are listed as options in the infant meal pattern to take into account an infant's readiness to accept these foods. Optional components are included in the breakfast and lunch/supper meal patterns for infants 4 through 7 months of age, and for the supplement (snack) meal pattern for infants 8 through 11 months of age.

If an infant is developmentally ready for solid foods, and the parent or guardian requests that they be served, the solid food components must be served to provide the infant with a reimbursable meal. Because solid foods serve an important purpose in an infant's daily diet, they are required as part of a reimbursable meal for infants who are developmentally ready for them. The decision to feed specific foods should always be made in consultation with an infant's parent or guardian.

Accordingly, this final rule amends §§ 210.10(n), 210.10(o), 220.8(j), and 226.20(b), to clarify that a serving of a component is required when the infant is developmentally ready. References to “whenever possible” are removed from the text to emphasize the importance of consulting with the infant's parent or guardian on decisions to feed specific foods.

One commenter asked about the types of approved infant formulas which can be served without medical statements in the Child Nutrition Programs. FNS periodically updates a list of acceptable iron-fortified infant formulas. Caregivers can request copies of the list from their State administering agencies.

Although a medical statement is not required for iron-fortified infant formulas, caregivers should only provide an infant with the formula recommended to the infant's parent or guardian by the infant's health care provider. If the formula offered by the caregiver is not the same as the formula recommended by an infant's health care provider, the infant's parent or guardian may choose to decline that one and supply another formula.

Readers are reminded that a meal containing only infant formula supplied by a parent or a guardian, and no other component, is not reimbursable. We recognize that, as with breastmilk-only meals, the formula feeding is fed from a bottle and requires a direct service by the caregiver. However, breastmilk-only meals are eligible for reimbursement because the meal promotes the infant's consumption of breastmilk.

One commenter also wanted to know what we recommend regarding the use of powdered versus ready to feed formula, or of bottled versus tap water, or of table versus commercial baby foods, in the Child Nutrition Programs. In the near future, FNS intends to publish a new edition of Feeding Infants'A Guide for Use in the Child Nutrition Programs. This handbook will provide guidance to caregivers, with recommendations about good infant feeding practices.

The proposed rule entitled, “Reimbursement for Snacks in Afterschool Programs,” published in the Federal Register on October 11, 2000 (65 FR 60502), proposed replacing the terms “supplement,” “meal supplement,” and “supplemental food” with more commonly used terms. An earlier rulemaking, the final rule entitled, “Additional Menu Planning Approaches,” published on May 9, 2000 (65 FR 26904), had already incorporated the term “afterschool snack” into § 210.10(o).

A separate rulemaking will finalize provisions addressing afterschool snacks. However, as we revised §§ 210.10(n)(3) and 226.20(b), we adopted the new terminology to simplify and add clarity to the infant meal pattern. Accordingly, this final rule incorporates the term “afterschool snack” into § 210.10(n)(3), and incorporates the term “snack” into § 226.20(b).

We have also clarified information in the infant and child care meal patterns. In §§ 210.10(o)(2)(iii)(B) and 226.20(b)(3)(ii) the meal pattern for infants age 8 through 11 months includes 1 to 4 ounces of cottage cheese, cheese food, and cheese spread. This rule specifies that cottage cheese is measured by volume, and that cheese food and cheese spread are measured by weight. The rule also adds a footnote to the supplement meal pattern in § 226.20(c)(4) to make it clearer that one-half egg meets the required minimum amount of meat alternate, even when the minimum amount is less than one ounce.

Finally, we redesignated and reworded the paragraphs in §§ 210.10(n), 210.10(o), 220.8(j), and 226.20(b). The reader should keep in mind that we rewrote those paragraphs to conform our regulations to the plain language guidelines and the formatting requirements of the Office of the Federal Register. With the exception of the amendments described in this preamble, we did not intentionally revise the content of the interim rule or of existing regulations.

This final rule was determined to be significant under Executive Order 12866 and was reviewed by the Office of Management and Budget.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, FNS generally prepares a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, or tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires FNS to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective or least burdensome alternative that achieves the objectives of the rule.

This final rule contains no Federal mandates (under regulatory provisions of Title II of the UMRA) for State, local, and tribal governments or the private sector of $100 million or more in any one year. Thus, this final rule is not subject to the requirements of sections 202 and 205 of the UMRA.

Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have “federalism implications,” agencies are directed to provide a statement for inclusion in the preamble to the regulation describing the agency's considerations in the three categories under section (6)(a)(B) of Executive Order 13132.

Prior to drafting this final rule, we received input from State and local agencies at various times. Since the Child Nutrition Programs are State administered, federally funded programs, our regional offices have informal and formal discussions with State and local officials on an ongoing basis regarding program implementation and performance. This arrangement allows State and local agencies to provide feedback that forms the basis for any discretionary decisions in this and other program rules. Additionally, the Food and Nutrition Service (FNS) published an interim rule on this rulemaking on November 15, 1999 (64 FR 61770) which solicited additional public comment.

State and local agencies are generally supportive of the provisions in the interim rule. The majority of them agreed with the amendments and with the scientific evidence described in the interim rule about currently accepted infant feeding practices. Some of them raised questions related to eliminating whole cow's milk from the infant meal pattern, while others were concerned about the decisions we made on allowing reimbursement for breastmilk-only meals.

FNS is now issuing a final regulation, based on the evidence described in the interim rule, a review of written comments submitted by the public in response to that rule, and our operational experience in implementing these changes. This final rule discusses the comments we received, and codifies the small number of revisions and corrections into 7 CFR 210.10 of the National School Lunch Program regulations, 7 CFR 220.8 of the School Breakfast Program regulations, and 7 CFR 226.20 of the regulations for the Child and Adult Care Food Program.

We have considered all of the comments we received on the interim rule. Since commenters addressed numerous operational issues, we made every effort to address their concerns, within the constraints of statutory authority and concerns for program integrity.

This final rule was reviewed with regard to the requirements of the Regulatory Flexibility Act (5 U.S.C. 601 through 612). The Under Secretary for Food, Nutrition and Consumer Services, Eric M. Bost, has certified that this rule will not have a significant economic impact on a substantial number of small entities because the number of infants who would be affected constitutes a tiny portion of the total participation in these programs. The principal effect of this rule will be to enhance the nutritional benefit of meals served to infants under these programs.

This rule will improve nutrition for some older infants who formerly were served whole cow's milk. The rule also removes a previous disincentive to serving breastmilk and reduces the waste of breastmilk. The rule may also encourage exclusive breastfeeding and increased duration of breastfeeding, consistent with recommended nutritional practice. Finally, this rule will help ensure that infants who are developmentally ready for solid foods will receive them at an appropriate age. Because this regulation largely reflects current policy from interim final rules published in November and December of 1999, it is not a major rule (economic impact of $100 million or more in any one year.)

The National School Lunch Program, the School Breakfast Program, and the Child and Adult Care Food Program are listed in the Catalog of Federal Domestic Assistance under Nos. 10.555, 10.553 and 10.558, respectively. Each is subject to the provisions of Executive Order 12372 which requires intergovernmental consultation with State and local officials (7 CFR 3015, subpart V and final rule related notice at 48 FR 29112, June 24, 1983).

This final rule was reviewed under Executive Order 12988, Civil Justice Reform. This final rule is intended to have preemptive effect with respect to any State or local laws, regulations, or policies which conflict with its provisions or which would otherwise impede its full implementation. This final rule is not intended to have retroactive effect unless so specified in the Effective Date section of this preamble. Prior to any judicial challenge to the provisions of this rule or the application of the provisions, all applicable administrative procedures must be exhausted. This includes any administrative procedures provided by State or local governments and, for disputes involving procurements by State agencies and sponsors, any administrative appeal procedures to the extent required by 7 CFR part 3016.

In the National School Lunch Program and the School Breakfast Program, the administrative procedures are set forth under the following regulations: (1) School food authority appeals of State agency findings as a result of an administrative review must follow State agency hearing procedures as established in § 210.18(q); (2) school food authority appeals of FNS findings as a result of an administrative review must follow FNS hearing procedures as established in § 210.29(d)(3); and (3) State agency appeals of State Administrative Expense fund sanctions (§ 235.11(b)) must follow the FNS Administrative Review process as established in § 235.11(f).

In the Child and Adult Care Food Program, the administrative procedures are set forth under the following regulations: (1) Institution appeal procedures are established in § 226.6(k); and (2) disputes involving procurement by State agencies and institutions must follow administrative appeal procedures to the extent required by § 226.22 and 7 CFR part 3015.

The information collection burden for this rule is approved under OMB Numbers 0584-0006, 0584-0012, and 0584-0055. This final rule contains no new paperwork burdens or information collection requirements which are subject to review by the Office of Management and Budget under the Paperwork Reduction Act of 1995 (44 U.S.C. 3507).

Marketing Order No. 945, as amended (7 CFR part 945), regulates the handling of Irish potatoes grown in certain designated counties in Idaho and Malheur County, Oregon. The marketing order is effective under the Agricultural Marketing Agreement Act of 1937 (Act), as amended (7 U.S.C. 601-674).

Marketing Order 945, originally established in 1941, authorizes grade, size, quality, pack, and container regulations, as well as inspection. Under section 8e of the Act, the grade, size, quality, and maturity regulations are also applied to imported potatoes. The marketing order establishes the Idaho-Eastern Oregon Potato Committee (Committee), consisting of five producers and three handlers and their respective alternates. Members serve two-year terms and are nominated by the Idaho-Eastern Oregon potato industry, currently consisting of approximately 1,200 producers and 63 handlers.

AMS published in the Federal Register (63 FR 8014; February 18, 1999), its plan to review certain regulations, including Marketing Order No. 945, under criteria contained in section 610 of the Regulatory Flexibility Act (RFA; 5 U.S.C. 601-612). An updated plan was published in the Federal Register on January 4, 2002 (67 FR 525). AMS published a notice of review and request for written comments on the Idaho-Eastern Oregon potato marketing order in the May 31, 2001, issue of the Federal Register (66 FR 24095). During the comment period, one written comment in support of the marketing order was received. This comment, received from the Committee, supported continuation of the marketing order.

The AMS review was undertaken to determine whether the Idaho-Eastern Oregon potato marketing order should be continued without change, amended, or rescinded to minimize the impacts on small entities. In conducting this review, AMS considered the following factors: (1) The continued need for the marketing order; (2) the nature of complaints or comments received from the public concerning the marketing order; (3) the complexity of the marketing order; (4) the extent to which the marketing order overlaps, duplicates, or conflicts with other Federal rules, and, to the extent feasible, with State and local governmental rules; and (5) the length of time since the marketing order has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the marketing order.

In its written comment, the Committee stated that the marketing order has contributed significantly to the name recognition the “Idaho Potato” currently enjoys nationally and internationally. The Committee believes that, since its inception, the marketing order has been a significant factor in the successful marketing of Idaho-Eastern Oregon potatoes and that it remains an important and viable tool for area producers.

Based on its review, AMS has determined that the marketing order should be continued without change. The marketing order was established to help the Idaho-Eastern Oregon potato industry work with AMS to solve marketing problems. The marketing order regulations on grade, size, quality, maturity, pack, container, and inspection requirements continue to be beneficial to producers, handlers, and consumers. Potatoes produced within this region are widely recognized by consumers as having quality characteristics.

Neither AMS nor the Committee have received any complaints regarding Marketing Order 945 or the regulations issued thereunder. The marketing order is not unduly complex. Except for 8e regulations, AMS has not identified any relevant Federal rules, or State and local regulations that duplicate, overlap, or conflict with the Idaho-Eastern Oregon potato marketing order. In its comment, the Committee states that the order is not complex, but adds that it is available to assist both regulated handlers and inspection personnel if there are any questions or problems regarding interpretation of the handling regulations issued under the marketing order.

AMS provides federal oversight of the order and, along with the Committee, monitors marketing operations on a continuing basis. AMS works with the Committee to be responsive to an ever-changing market. Changes in regulations are implemented to reflect current industry operating practices, and to solve marketing problems as they occur. The goal of these evaluations is to assure that the marketing order and the regulations implemented under it fit the needs of the industry and are consistent with the Act. The Committee commented that it meets at least twice annually to discuss the marketing order and the various regulations issued thereunder, and to determine if, or what, changes may be necessary to recommend to AMS to reflect current industry practices. As a result, regulatory changes have been made by AMS numerous times over the years to address industry operation changes and to improve program administration.

AMS will continue to work with the Idaho-Eastern Oregon potato industry in maintaining an effective marketing order program.

This rule is issued under Marketing Agreement and Order No. 989 (7 CFR part 989), both as amended, regulating the handling of raisins produced from grapes grown in California, hereinafter referred to as the “order.” The order is effective under 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 (USDA) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive intent. Under the order provisions now in effect, varietal types and quality requirements may be established for raisins acquired by handlers during the crop year. This rule establishes a new varietal type and quality requirements for Other Seedless-Sulfured raisins. 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 USDA 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. Such handler is afforded the opportunity for a hearing on the petition. After the hearing USDA 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 USDA'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 rule adds a new varietal type of raisin under the order. The order regulates the handling of raisins produced from grapes grown in California and is administered locally by the RAC. The order provides authority for volume and quality regulations that are imposed by varietal type. This action establishes, and adds to the regulations a varietal type (Other Seedless-Sulfured raisins), along with quality requirements, which is a new type of raisin being produced by some industry members. This action was recommended by the RAC at a meeting in August 2001, and discussed further at RAC meetings in September and November 2001. The RAC recommended that this rule apply to such raisins acquired during the 2001-02 crop year and forward. Changes to the import regulation will be made in a separate rule.

The order provides authority for volume and quality regulations that are imposed by varietal type. Section 989.10 of the order defines the term varietal type to mean raisins generally recognized as possessing characteristics differing from other raisins in a degree sufficient to make necessary or desirable separate identification and classification. That section includes a list of eight varietal types, and provides authority for the RAC, with the approval of USDA, to change this list. A description of these varietal types, along with additional varietal types, may be found in § 989.110 of the order's administrative rules and regulations. There are currently nine different varietal types of raisins listed in this section.

Some industry members have found a new market for raisins made by dehydrating sulfured red seedless grapes. These raisins do not fit into any of the current existing varietal types specified in § 989.110. Such raisins are similar to the Other Seedless varietal type, except they have been sulfured. Such raisins are also similar to the Golden Seedless varietal type, but may not meet the color requirements for Golden Seedless raisins. Golden Seedless raisins are made from green seedless grapes and are mostly yellowish green to greenish amber in color when sulfured. Red seedless grapes typically vary in color when sulfured.

Thus, the RAC recommended establishing, and adding to the regulations, a new varietal type—Other Seedless-Sulfured raisins. This will allow the RAC to consider Other Seedless-Sulfured raisins separate from other varietal types for the purpose of volume and quality regulation, thereby recognizing distinct differences in supply and demand conditions, and raisin characteristics. Accordingly, a new paragraph (j) is added to § 989.110 to define Other Seedless-Sulfured as all raisins produced from Ruby Seedless, Kings Ruby Seedless, Flame Seedless and other seedless grapes not included in any of the varietal categories for Seedless raisins which have been artificially dehydrated and sulfured.

This rule also adds quality requirements for Other Seedless-Sulfured raisins. Specifically, this rule adds: incoming quality requirements (which includes adding these raisins to the order's weight dockage system); a factor for converting between natural condition and processed weight; and outgoing quality requirements for Other Seedless-Sulfured raisins. The details of these changes are discussed below.

Section 989.58(a) of the order provides authority for quality control regulations whereby natural condition raisins that are delivered from producers to handlers must meet certain incoming quality requirements. Section 989.701 of the order's regulations specifies minimum grade and condition standards for natural condition raisins for each varietal type. Paragraph (b) of that section specifies requirements for two varietal types of raisins—Dipped Seedless and Oleate and Related Seedless raisins. The RAC determined that natural condition Other Seedless-Sulfured raisins are similar to these two varietal types and, therefore, it has been determined that they should have the same incoming quality requirements. Accordingly, paragraph (b) of § 989.701 is revised to include Other Seedless-Sulfured raisins.

Section 989.58(a) also contains authority for handlers to acquire natural condition raisins that fall outside the tolerance established for maturity, which includes substandard raisins, under a weight dockage system. Handler acquisitions of raisins and payments to producers are adjusted according to the percentage of substandard raisins in a lot, or the percentage of raisins that fall below certain levels of maturity. Section 989.210(a) of the order's regulations lists the varietal types of raisins that may be acquired pursuant to a weight dockage system. Sections 989.212 and 989.213 contain tables with dockage factors applicable to lots of raisins that fall outside the tolerances for substandard raisins and maturity, respectively, specified in § 989.701.

Because these raisins are similar to Dipped Seedless and Oleate and Related Seedless raisins, this rule adds Other Seedless-Sulfured raisins to the list contained in § 989.210(a), the substandard dockage table specified in § 989.212(b), the list regarding maturity in § 989.213(a), and to the maturity dockage tables in § 989.213(b) and (d). Additionally, this rule removes obsolete language contained in §§ 989.212 and 989.213 that was applicable to only the 1998-99 crop year.

Section 989.601 of the order's regulations specifies a list of conversion factors for raisin weights. The factors are used to convert the net weight of reconditioned raisins acquired by handlers as packed raisins to a natural condition weight. The net weight of the raisins after the completion of processing is divided by the applicable factor to obtain the natural condition weight. If the adjusted weight exceeds the original weight, the original weight is used. This rule adds Other Seedless-Sulfured raisins to that list, specifying a conversion factor of 0.95. These raisins are similar to Golden Seedless and Dipped Seedless for which 0.95 conversion factors are specified.

Section 989.59 of the order provides authority for quality control regulations for raisins subsequent to their acquisition by handlers (outgoing requirements). Section 989.702 of the order's regulations specifies minimum grade standards for packed raisins. Paragraph (a) of that section specifies requirements for three varietal types—Natural (sun-dried) Seedless, Dipped Seedless, and Oleate and Related Seedless raisins. This rule revises paragraph (a) to add Other Seedless-Sulfured raisins.

Accordingly, Other Seedless-Sulfured raisins must meet the requirements of U.S. Grade C as defined in the United States Standards for Grades of Processed Raisins (§§ 52.1841 through 52.1858) issued under the Agricultural Marketing Act of 1946 (7 U.S.C. 1622 through 1624). At least 70 percent, by weight, of the raisins in a lot must be well-matured or reasonably well-matured. With respect to select-sized and mixed-sized lots, the raisins must at least meet the U.S. Grade B tolerances for pieces of stem, and underdeveloped and substandard raisins, and small (midget) sized raisins must meet the U.S. Grade C tolerances for those factors.

All raisin handlers are currently required to submit various reports to the RAC where the data collected is segregated by varietal type of raisin. These reports include: (1) Weekly Report of Standard Raisin Acquisitions (RAC-1); (2) Weekly Report of Standard Raisins Received for Memorandum Receipt or Warehousing (RAC-3); (3) Monthly Report of Free Tonnage Raisin Disposition (RAC-20); (4) Weekly Off-Grade Summary (RAC-30); (5) Inventory of Free Tonnage Standard Quality Raisins On Hand (RAC-50); and (6) Inventory of Off-Grade Raisins On Hand (RAC-51). This rule requires that an additional column be added to these six forms so that handlers can report Other Seedless-Sulfured raisins separately. The current total annual burden for these six forms is 660 hours. This rule will not change this burden on handlers.

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, AMS has prepared this initial 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 20 handlers of California raisins who are subject to regulation under the order and approximately 4,500 raisin producers in the regulated area. Small agricultural 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 having annual receipts of less than $750,000. Thirteen of the 20 handlers subject to regulation have annual sales estimated to be at least $5,000,000, and the remaining 7 handlers have sales less than $5,000,000, excluding receipts from any other sources. No more than 7 handlers, and a majority of producers, of California raisins may be classified as small entities.

The order provides authority for volume and quality regulations that are imposed by varietal type of raisin. This rule establishes, and adds to the regulations a varietal type (Other Seedless-Sulfured raisins), along with quality requirements which is a new type of raisin that is being produced by some industry members. A new paragraph (j) is added to § 989.110 of the order's regulations to define the varietal type Other Seedless-Sulfured raisins. Pursuant to §§ 989.58 and 989.59, quality requirements for Other Seedless-Sulfured raisins are added to the order's regulations as follows: incoming quality requirements are added to §§ 989.210, 989.212, 989.213, and 989.701; a factor for converting between natural condition and processed weight is added to § 989.601; and outgoing quality requirements are added to § 989.702.

Regarding the impact of this action on affected entities, this rule will allow the RAC to consider Other Seedless-Sulfured raisins separately from other varietal types of raisins for the purpose of volume and quality regulation, thereby recognizing distinct differences in supply and demand conditions for that product. Producers and handlers will be able to take advantage of a separate and distinct market for Other Seedless-Sulfured raisins. This rule also allows appropriate quality requirements to be applied to this new varietal type, which will facilitate the production and handling of such raisins. In addition, this rule will allow the RAC to examine data on acquisitions and shipments of Other Seedless-Sulfured raisins, as handlers submit various reports to the RAC where the data is segregated by varietal type. The RAC will be able to analyze this data and assess marketing trends and opportunities for this unique varietal type. There are no expected additional costs associated with this regulation on either producers or handlers.

The RAC considered some alternatives to this action. The RAC reviewed the existing varietal types to see whether Other Seedless-Sulfured raisins could fit into an established category. The Golden Seedless and Other Seedless varietal types were examined. However, Other Seedless-Sulfured raisins may not meet the color requirements for Golden Seedless raisins. In addition, Other Seedless-Sulfured raisins do not fit into the Other Seedless category because that varietal type has historically included raisins that have not been sulfured. The industry determined that it was appropriate to establish a separate varietal type for Other Seedless raisins that had been dehydrated and sulfured.

All raisin handlers are currently required to submit various reports to the RAC where the data collected is segregated by varietal type of raisin. These reports include: (1) Weekly Report of Standard Raisin Acquisitions (RAC-1); (2) Weekly Report of Standard Raisins Received for Memorandum Receipt or Warehousing (RAC-3); (3) Monthly Report of Free Tonnage Raisin Disposition (RAC-20); (4) Weekly Off-Grade Summary (RAC-30); (5) Inventory of Free Tonnage Standard Quality Raisins On Hand (RAC-50); and (6) Inventory of Off-Grade Raisins On Hand (RAC-51). This rule requires that an additional column be added to these six forms so that handlers can report Other Seedless-Sulfured raisins separately. The current total annual burden for these six forms is 660 hours. This rule will not change this burden on handlers.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection requirements referenced above have been approved by the Office of Management and Budget (OMB) under OMB Control No. 0581-0178. 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.

Additionally, except for applicable section 8e import regulations, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule. However, as previously stated, Other Seedless-Sulfured raisins must meet U.S. Grade C as defined in the United States Standards for Grades of Processed Raisins (§§ 52.1841 through 52.1858) issued under the Agricultural Marketing Act of 1946 (7 U.S.C. 1622 through 1624).

Further, the RAC's meetings on August 14, September 20, and November 13, 2001, where this action was deliberated were public meetings widely publicized throughout the raisin industry. All interested persons were invited to attend the meetings and participate in the industry's deliberations. Finally, interested persons are invited to submit information on the regulatory and information impact of this action on small businesses.

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.

Comments are invited concerning this rule. A 60-day comment period is provided to allow interested persons to respond. All comments received will be considered prior to finalization of this rule.

After consideration of all relevant material presented, including the information and recommendation submitted by the RAC 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.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect, and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) Other Seedless-Sulfured raisins are being produced by dehydrators and acquired by handlers during the 2001-02 crop year; (2) industry members are aware of this action which was recommended and discussed by the RAC at public meetings; (3) this rule provides appropriate quality standards for Other Seedless-Sulfured raisins which will facilitate the production and marketing of such raisins; and (4) this interim final rule provides a 60-day period for written comments, and all comments timely received will be considered prior to finalization of this rule.

The Office of Management and Budget has waived the review process required by Executive Order 12866 for this action.

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

The Cotton Research and Promotion Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under Section 12 of the Act, any person subject to an order may file with the Secretary a petition stating that the order, any provision of the plan, or any obligation imposed in connection with the order is not in accordance with law and requesting a modification of the order or to be exempted therefrom. Such person 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 person is an inhabitant, or has his principal place of business, has jurisdiction to review the Secretary's ruling, provided a complaint is filed within 20 days from the date of the entry of ruling.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) AMS has considered the economic impact of this action on small entities and has determined that its implementation will not have a significant economic impact on a substantial number of small businesses.

There are an estimated 10,000 importers who are presently subject to rules and regulations issued pursuant to the Cotton Research and Promotion Order. This rule will affect importers of cotton and cotton-containing products. The majority of these importers are small businesses under the criteria established by the Small Business Administration. This rule will lower the assessments paid by the importers under the Cotton Research and Promotion Order. Even though the assessment would be lowered, the decrease is small and will not significantly affect small businesses. The current assessment on imported cotton is $0.009965 per kilogram of imported cotton. The new assessment is $0.00862, a decrease of $0.001345 or a 13.5 percent decrease. From January through December 2001 approximately $22 million was collected. Should the volume of cotton products imported into the U.S. remain at the same level in 2002, one could expect the decreased assessment to generate approximately $19 million or a 13.5 percent decrease from 2001.

In compliance with Office of Management and Budget (OMB) regulations (5 CFR Part 1320) which implement the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.) the information collection requirements contained in the regulation to be amended have been previously approved by OMB and were assigned control number 0581-0093.

The Cotton Research and Promotion Act Amendments of 1990 enacted by Congress under Subtitle G of Title XIX of the Food, Agriculture, Conservation and Trade Act of 1990 on November 28, 1990, contained two provisions that authorized changes in the funding procedures for the Cotton Research and Promotion Program.

These provisions are: (1) The assessment of imported cotton and cotton products; and (2) termination of the right of cotton producers to demand a refund of assessments. An amended Cotton Research and Promotion Order was approved by producers and importers voting in a referendum held July 17-26, 1991, and the amended Order was published in the Federal Register on December 10, 1991, (56 FR 64470). A proposed rule implementing the amended Order was published in the Federal Register on December 17, 1991, (56 FR 65450). Implementing rules were published on July 1 and 2, 1992, (57 FR 29181) and (57 FR 29431), respectively.

This rule will decrease the value assigned to imported cotton in the Cotton Board Rules and Regulations (7 CFR 1205.510(b)(2)). This value is used to calculate supplemental assessments on imported cotton and the cotton content of imported products. Supplemental assessments are the second part of a two-part assessment. The first part of the assessment is levied on the weight of cotton produced or imported at a rate of $1 per bale of cotton which is equivalent to 500 pounds or $1 per 226.8 kilograms of cotton.

Supplemental assessments are levied at a rate of five-tenths of one percent of the value of domestically produced cotton, imported cotton, and the cotton content of imported products. The agency has adopted the practice of assigning the calendar year weighted average price received by U.S. farmers for Upland cotton to represent the value of imported cotton. This is done so that the assessment on domestically produced cotton and the assessment on imported cotton and the cotton content of imported products remain similar. The source for the average price statistic is “Agricultural Prices”, a publication of the National Agricultural Statistics Service (NASS) of the Department of Agriculture. Use of the weighted average price figure in the calculation of supplemental assessments on imported cotton and the cotton content of imported products yields an assessment that approximates assessments paid on domestically produced cotton in the prior calendar year.

The current value of imported cotton as published in the Federal Register (66 FR 58051) on November 20, 2001, for the purpose of calculating supplemental assessments on imported cotton is $1.1111 per kilogram. This number was calculated using the annual weighted average price received by farmers for Upland cotton during the calendar year 2000 which was $0.504 per pound and multiplying by the conversion factor 2.2046. Using the Average Weighted Price Received by U.S. farmers for Upland cotton for the calendar year 2001, which is $0.382 per pound, the new value of imported cotton is $0.8422 per kilogram. The amended value is $.2689 per kilogram less than the previous value.

An example of the complete assessment formula and how the various figures are obtained is as follows:

One bale is equal to 500 pounds.

One kilogram equals 2.2046 pounds.

One pound equals 0.453597 kilograms.

A 500 pound bale equals 226.8 kg. (500 × .453597).

$1 per bale assessment equals $0.002000 per pound ( 1/500 ) or $0.004409 per kg. (1/226.8).

The 2001 calendar year weighted average price received by producers for Upland cotton is $0.382 per pound or $0.8422 per kg. (0.382 × 2.2046).

Five tenths of one percent of the average price in kg. equals $0.004211 per kg. (0.8422 × .005).

The total assessment per kilogram of raw cotton is obtained by adding the $1 per bale equivalent assessment of $0.004409 per kg. and the supplemental assessment $0.004211 per kg. which equals $0.00862 per kg.

The current assessment on imported cotton is $0.009965 per kilogram of imported cotton. The amended assessment is $0.00862, a decrease of $0.001345 per kilogram. This decrease reflects the decrease in the Average Weighted Price of Upland Cotton Received by U.S. Farmers during the period January through December 2001.

Since the value of cotton is the basis of the supplemental assessment calculation and the figures shown in the right hand column of the Import Assessment Table 1205.510(b)(3) are a result of such a calculation, the figures in this table have been revised. These figures indicate the total assessment per kilogram due for each Harmonized Tariff Schedule (HTS) number subject to assessment.

A proposed rule with request for comments was published in the Federal Register (67 FR 15495) on April 2, 2002. No comments were received during the period (April 2 through May 2, 2002).

Several changes in the harmonized tariff schedule numbering have occurred. Modifications to the harmonized tariff schedule were published in the December 26, 2001, Federal Register at 66 FR 66549 (Proclamation 7515 of December 18, 2001, by the President of the United States of America). These changes are as follows: Numbers changed:

This interim rule amends 8 CFR 3.27 and 3.31, and adds 8 CFR 3.46 to authorize immigration judges to issue protective orders and accept documents under seal. This authority will ensure that sensitive law enforcement or national security information can be protected against general disclosure, while still affording full use of the information by the immigration judges, Board of Immigration Appeals, the respondent, and the courts.

The Immigration and Naturalization Service (“Service”) may need to introduce in immigration proceedings sensitive law enforcement or national security information. For example, the Service may need to introduce grand jury information or information that reveals the identity of confidential informants, witnesses, or sources to establish that release from custody of a particular respondent poses a danger to the safety of other persons under section 236 of the Immigration and Nationality Act (“Act”), 8 U.S.C. 1226. Similarly, the Service may need to introduce sensitive evidence of organized criminal activity, either in the United States or in a foreign country, to establish the basis on which the Service believes that the respondent “is or has been an illicit trafficker in any controlled substance” under section 212(a)(2)(C)(i) of the Act, 8 U.S.C. 1182(a)(2)(C)(i), and is inadmissible. The disclosure of such information could clearly jeopardize ongoing criminal investigations and the safety of any sources and law enforcement officers. This rule is necessary to ensure that a respondent in proceedings will not disclose that information to individuals not authorized to possess the information.

This rule is also necessary because apparently innocuous law enforcement or national security information may be valuable to persons with a broader view of a subject. See generally, McGehee v. Casey, 718 F.2d 1137, 1149 (D.C. Cir. 1983) (“[d]ue to the mosaic-like nature of intelligence gathering, for example, [w]hat may seem trivial to the uninformed may appear of great moment to one who has a broad view of the scene and may put the questioned item of information in context”) (internal quotations omitted). Certain circumstances may therefore require that access to information submitted to an immigration judge be restricted. This regulation provides immigration judges and the Service with the flexibility to protect this information where necessary.

In this post-September 11, 2001, era, the highest priority of the Department of Justice (“Department”) is to prevent, detect, disrupt, and dismantle terrorism while preserving constitutional liberties. The intelligence and law enforcement communities' ability to collect and protect information relating to terrorist organizations is vital to the success of the United States' mission against terrorism. Failure to protect sensitive information may impede future collection efforts or aid terrorists who seek to harm Americans by revealing the thrust, sources, and methods of the Government's investigations. Disclosures of such sensitive information could allow terrorists to discern patterns in an investigation, enabling them to evade detection in the future. Disclosure of sensitive information could also reveal the identity of witnesses, allowing terrorists to threaten those witnesses or their families, and to make all witnesses less likely to cooperate. Such disclosures could also give terrorists clues as to what the Government knows and, sometimes more importantly, what the Government does not know. Such information could enable terrorists to adjust their plans in ways that avoid Government detection and that further endanger American lives. The Third Circuit recently recognized this principle:

These regulations are a prudent and balanced acknowledgment of the reality that the Government's efforts against terrorism require the Department to treat information collected by the law enforcement and intelligence communities as vital national assets.

Congress has plenary authority over immigration matters. U.S. Const. Art I, sec. 8, cl. 4.

Congress has delegated to the Attorney General broad authority to administer the Act, to manage the Service, and to effectuate the administrative adjudication functions related to immigration. 8 U.S.C. 1103(a). Moreover, the Attorney General has an active role in the administration of the intelligence and law enforcement communities, both of which implicate the President's plenary authority over foreign relations. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936) (“In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation”).

Indeed, the courts have viewed the President's inherent powers as a justification for permitting Congress to make remarkably broad delegations of its authority in the immigration field. Knauff, 338 U.S. at 543; Curtiss-Wright Export Corp., 299 U.S. at 319-20 (when dealing with foreign affairs Congress may delegate a degree of discretion that would not be permissible if domestic policy alone were involved); see also Jean v. Nelson, 472 U.S. 846, 879 (1985) (Marshall, J., dissenting) (a lesser degree of procedural due process has been accorded to respondents in cases involving national security).

The Attorney General here is exercising the confluence of the authority granted by Congress under the Act and his authority inherent from his position as Attorney General concerning immigration policy, with regard to all such matters that are not subject to either a statutory mandate or an express prohibition. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 636-37 (1952) (Jackson, J. concurring).

This rule complements several other authorities to retain information. A directive by Chief Immigration Judge Creppy on September 21, 2001, that certain “special interest” cases should be closed to the public under 8 CFR 3.27, has generally limited the disclosure of information during hearings by limiting the attendees to those hearings. This rule is designed to work in tandem with that authority, and in a limited sense, codify a portion of that authority, by limiting what the respondent and his or her representatives may disclose about sensitive law enforcement and national security information outside the context of those hearings. The rule does not, however, replace or diminish the authority of the Chief Immigration Judge to manage the Immigration Courts and close hearings. The Chief Immigration Judge will continue to use 8 CFR 3.9 and 3.27 to ensure that testimony before an Immigration judge does not disclose sensitive law enforcement and national security information.

This rule utilizes several elements of protective orders in federal courts in the immigration administrative adjudication process. The Service may file a motion, with or without sealed information, to acquire a protective order for that information. The motion will be served on the respondent, who may respond within a short time. The information will not be made available to the respondent. The Immigration judge may review the information in camera only to determine whether to grant or deny the motion.

If a motion is denied, the information must be returned to the Service. The Service may appeal that decision immediately and any appeal must be decided expeditiously. This process maintains the status quo to the greatest extent possible while the protective order is considered.

If the motion is granted, an appropriate protective order is issued and the respondent will be provided with the information under the protective order. The respondent may challenge the admissibility of the information as evidence. The respondent may appeal the determination at the conclusion of proceedings.

The Department recognizes that the issuance of a protective order raises First Amendment free speech issues. In this rule, the protective orders are limited to an important and substantial governmental interest in safeguarding the public, and national security and law enforcement concerns. The rule no more limits a respondent's, or the respondent's representatives, rights than is necessary or essential to protect the particular governmental interests involved. Like the protective orders under Federal Rule of Civil Procedure 26(c), the Department seeks only to limit a respondent's ability to disclose or disseminate information discovered in the removal process and subject to the protective order. The Department believes that this rule is sufficiently narrow to meet the requirements of the Supreme Court in Seattle Times Company v. Rhinehart, 467 U.S. 20 (1984) (interpreting Rule 26(c) and a district court protective order issued in discovery) and Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) (public statements of attorney and application of bar disciplinary process). To do so, the rule utilizes a requirement that there be a substantial likelihood that disclosure or dissemination will harm the law enforcement or national security interests of the United States.

Moreover, the rule must be construed to comply with constitutional requirements. For example, the rule could not be applied to preclude a respondent from publicly stating the content of his own testimony before the immigration judge. See Butterworth v. Smith, 494 U.S. 624 (1990). A respondent could, however, be ordered not to disclose what he or she has learned from the protected information that comes into his or her knowledge during the proceedings, including, for example, the significance of information that the respondent already knows. Id., at 632 (“right to divulge information of which he was in possession before he testified before the grand jury, and not information which he may have obtained as a result of his participation in the proceedings of the grand jury”).

The issuance of protective orders in administrative proceedings is not a new concept. On the contrary, a number of agencies have exercised this type of authority in the past, in situations that do not pose the same degree of danger to the interests of the United States. See, e.g., 4 CFR 21.4 (General Accounting Office; protection of proprietary, confidential, or source-selection sensitive material in bid protests); 14 CFR 13.220 (Federal Aviation Administration; discovery in civil penalty actions); 17 CFR 201.322 (Securities and Exchange Commission; rules of practice and procedure).

The administrative enforcement provision of this interim rule sets out various consequences that violators of a protective order may face. A respondent who violates a protective order, or whose attorney or accredited representative violates a protective order, will not be granted any form of discretionary relief from removal. The Supreme Court has upheld an agency's ability to exercise discretionary authority through regulations. See Lopez v. Davis, 531 U.S. 230 (2001). Discretionary relief is an “an act of grace.” Jay v. Boyd, 351 U.S. 345, 354 (1956). Where a respondent has violated a protective order and thereby possibly compromised sensitive information, such grace ought not be afforded readily—particularly where the respondent has already shown a disregard for this Nation's laws by violating the terms of his or her visa or otherwise violating the Act. Thus, as an exercise of the Attorney General's discretion, these regulations provide that a respondent who violates a protective order, or whose attorney or accredited representative violates a protective order, should generally not be granted discretionary relief.

Attorneys and accredited representatives may also be barred from appearing in further proceedings before EOIR or the Service. See 8 CFR 3.102(g) (contumelious conduct amounting to contempt). An attorney's or accredited representative's failure to comply with the protective order may be charged to the client and may impair the client's ability to obtain discretionary relief.

The possibility that a respondent might violate the order and disclose protected information presented does not eliminate the importance of attempting to restrict access to the information. The Department believes that most respondents will comply with the protective orders because disclosure of some sensitive information may imperil them directly.

The Department also recognizes that a respondent may possess information that is of such a sensitivity to the respondent that it warrants protection from general disclosure and existing regulations provide sufficient protection for the respondent. For example, a respondent who has applied for asylum under section 208 of the Act will naturally be testifying about events that he or she believes have had or will have horrific consequences. The application for asylum and related documents are already the subject of non-disclosure requirements. 8 CFR 208.6. Similarly, an immigration judge may close proceedings in the public interest, including for the protection of the respondent. 8 CFR 3.27(b). A lawful permanent resident is protected from disclosure of personal information by government officials under the Privacy Act of 1974, 8 U.S.C. 552a. Respondents arriving at a port of entry who are denied admission also routinely receive closed hearings. 8 CFR 3.27. Moreover, the Department has a long-standing policy against releasing information about any individual who is involved in civil proceedings in order to protect their privacy and the integrity of the adjudicatory process. 28 CFR 50.2(c). Accordingly, the Department feels that individual respondents in proceedings do not require further privacy protections for sensitive information.

The Department's implementation of this rule as an interim rule, with provisions for post-promulgation public comments, is based on the “good cause” exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). The reason and necessity for the immediate promulgation of this rule are as follows: Sensitive information developed by, or provided to, the Federal Bureau of Investigation or the Service in the course of national security and law enforcement investigations sometimes must be presented to Immigration judges in instances where disclosure of that information would jeopardize or compromise the national security or law enforcement operations of the Government as explained in the Supplementary Information. Disclosure could, for example, reveal important information about the direction, progress, focus and scope of investigations arising out of the attack on September 11, 2001, and thereby assist terrorist organizations in counteracting investigative efforts of the United States.

In order to safeguard these important interests, the immigration judge must be given authority to issue protective orders to safeguard such sensitive information from disclosure. In light of the national emergency declared by the President on September 14, 2001, in Proclamation 7453, with respect to the terrorist attacks of September 11, 2001, and the continuing threat by terrorists to the security of the United States, and the need immediately to control such information pertaining to respondents in immigration proceedings, there is good cause under 5 U.S.C. 553(b) and (d) for dispensing with the requirements of prior notice and to make this rule effective upon signature.

The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule applies only to release of sensitive information in immigration proceedings. It does not have any impact on small entities as that term is defined in 5 U.S.C. 601(6).

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

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Act of 1996, 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

This rule is considered by the Department of Justice to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, this rule has been submitted to the Office of Management and Budget for review.

This rule 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. This rule merely pertains to the disclosure of sensitive information filed under seal in immigration proceedings. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

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

Under the Paperwork Reduction Act of 1995, Public Law 104-13, all Departments are required to submit to the Office of Management and Budget (OMB) for review and approval, any reporting requirements inherent in a final rule. This rule does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that is applicable to Rolls-Royce plc RB211 Trent 875, 877, 884, 892, 892B, and 895 series turbofan engines was published in the Federal Register on December 6, 2001 (66 FR 63341). That action proposed to require reapplication of dry film lubricant to low pressure compressor (LPC) fan blade roots.

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

One commenter suggests that the word “installation” in Table 1 of the compliance section, be replaced with the words “new or last lubrication.” The commenter is concerned that the word “installation” does not ensure AD compliance at installation.

The FAA agrees. The wording in Table 1 has been changed because the suggested wording ensures that lubrication of the blade root is the proper criteria to use.

One commenter requests “LPT” be changed to correctly read “LPC” in Table 1, and “Dow Corning 321R (Rolls-Royce (RR) Omat item 4/52)” be changed to correctly read Dow Corning 321R (Rolls-Royce (RR) Omat item 4/51)” in paragraph (a).

The FAA agrees and has made these corrections in the final rule.

One commenter suggests that the word “inspect” is not applicable in paragraph (b), and should be replaced with the word “lubricate.” The AD is applicable to blade root lubrication.

The FAA agrees and has changed paragraph (b) in the final rule to state that on the effective date of the AD, blades with more cycles than the initial compliance criteria listed in Table 1 of this AD must be lubricated within 100 cycles-in-service after the effective date of this AD.

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

The FAA estimates that 100 engines installed on aircraft of U.S. registry would be affected by this AD. The FAA also estimates that it would take approximately 6 work hours per engine to accomplish the proposed actions, and that the average labor rate is $60 per work hour. Based on these figures, the total labor cost of the AD on U.S. operators is estimated to be $36,000 to accomplish each application of lubricant. The FAA estimates that operators will apply lubricant an average of 1.5 times per year, making the total annual cost of compliance with this AD $54,000.

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.

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

Austro Control, which is the airworthiness authority for Austria, recently notified the FAA that an unsafe condition may exist on Bombardier-Rotax GmbH 914 F series reciprocating engines. Austro Control advises that cracks found in exhaust bend assemblies, which are located between the cylinder heads and exhaust manifold assembly have been detected in service. Bombardier-Rotax GmbH is continuing to evaluate the unsafe condition and may implement a design change as terminating action.

This engine model is manufactured in Austria 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, Austro Control has kept the FAA informed of the situation described above. The FAA has examined the findings of Austro Control, 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 Bombardier-Rotax GmbH 914 F series reciprocating engines of the same type design, this AD is being issued to prevent carbon monoxide from entering the cabin, and also to prevent the possibility of an engine fire. This AD requires initial and repetitive inspections of exhaust bend assemblies part numbers (P/N's) 979422, 979432, 979442, and 979452, which are located between the cylinder heads and exhaust manifold assembly, for exterior traces of smoke, cracks, and damage.

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 2002-NE-07-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.

This amendment to 14 CFR part 71 modifies class E airspace at Athens, Ohio, to Accommodate Aircraft executing the proposed GPS SIAP 129° helicopter point in space approach for O'Bleness Memorial Hospital by modifying existing controlled airspace. The area will be depicted on appropriate aeronautical charts. Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.9J, dated August 31, 200, and effective September 16, 2001, which is incorporated by reference in 14 CFR Sec. 71.1 The Class E airspace designation listed in this document will be published subsequently in the order.

The FAA anticipates that this regulation will not result in adverse or negative comment and therefore is issuing it as a direct final rule. A substantial number of previous opportunities provided to the public to comment on substantially identical actions have resulted in negligible adverse comments on objections. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document will be published in the Federal Register . This document may withdraw the direct final rule in whole or in part. After considering the adverse or negative comment, we may publish another direct final rule or publish a notice of proposed rulemaking with a new comment period.

Although this action is in the form of a final rule and was not preceded by a notice of proposed rulemaking, 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 or withdrawn in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of this action and determining whether additional rulemaking action is 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 action will be filed in the Rule Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 91-AGL-17.” The postcard will be date stamped and returned to the commenter.

The regulations adopted herein 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. Therefore, it is determined that this final rule will not have federalism implications under Executive Order 13132.

Further, the FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments and only involves an established body of technical regulations that require frequent and routine amendments to keep them operationally current. Therefore, I certify that 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) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. Since this rule involves routine matters that will only affect air traffic procedures and air navigation, it does not warrant preparation of a Regulatory Flexibility Analysis because the anticipated impact is so minimal.

Pursuant to 5 U.S.C. 553, a notice of proposed rulemaking (NPRM) was not published for this regulation. Good cause exists for not publishing a NPRM in the Federal Register . As a result of coordination with the local harbormaster, marine facilities, and operators regarding the closure of the bridge and the fact that the bridge has been closed during past years for this event with no impact on navigation, we believe that it is not necessary to draft or publish a NPRM in advance of the requested start date for this bridge closure. This bridge closure is a necessary measure to facilitate public safety by allowing the orderly flow of vehicular traffic before and after this annual fireworks event.

The Meadowbrook State Parkway Bridge has a vertical clearance of 22 feet at mean high water and 25 feet at mean low water in the closed position, unlimited vertical clearance in the full open position. The existing regulations are listed at 33 CFR 117.799(h).

The bridge owner, the New York State Office of Parks, Recreation and Historic Preservation, requested that the bridge be allowed to remain closed from 9 p.m. to midnight, during the annual Fourth of July fireworks event at the Jones Beach State Park. The Coast Guard coordinated this closure with the local facilities and operators and no objections were received. The bridge has been closed for the past several years to facilitate this annual event.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979). This conclusion is based on the fact that the mariners that normally use this waterway have no objections to the bridge closure to facilitate this annual event.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This conclusion is based on the fact that the mariners that normally use this waterway have no objections to the bridge closure to facilitate this annual event.

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

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

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

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

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

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

The Coast Guard considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (32)(e) of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation because promulgation of changes to drawbridge regulations have been found to not have a significant effect on the environment. A written “Categorical Exclusion Determination” is not required for this rule.

This final rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

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

On February 7, 2002, the Secretaries published a final rule (67 FR 5890) to establish regulations for seasons, harvest limits, and methods and means related to taking of fish and shellfish for subsistence uses during the 2002 regulatory year. These regulations are subject to an annual review cycle, so the regulations set forth in the February 7, 2002, final rule are effective March 1, 2002, through February 28, 2003. Among many other changes, the February 7, 2002, final rule included changes to the regulations governing subsistence fishing and shellfishing in the Prince William Sound Fishery Management Area. In making revisions to the Prince William Sound regulations, we inadvertently omitted a previously established requirement.

Prior to publication of the February 7, 2002, final rule (67 FR 5890, 5903), the text in 36 CFR 242 (i)(11)(xii) and (xiii) and 50 CFR 100 (i)(11)(xii) and (xiii) read as follows:

(xii) Except as provided in this section, you may take fish other than salmon and freshwater fish species for subsistence purposes without a subsistence fishing permit.

(xiii) You may take salmon and freshwater fish species only under authority of a subsistence fishing permit.

In publishing the February 7, 2002, final rule, the words “and freshwater fish species” were inadvertently removed from the subparagraphs stated above. Through this final rule correction, we are simply correcting the text in 36 CFR 242 (i)(11)(xii) and (xiii) and 50 CFR 100 (i)(11)(xii) and (xiii) to read as it did prior to publication of the February 7, 2002, final rule. Therefore, we are reinstating the permit requirement for freshwater fish in the Prince William Sound Fishery Management Area that was removed in error by the February 7, 2002, final rule.

We are making no further changes to the February 7, 2002, final rule. The basis and required determinations for that rule are the same as for this final rule, which simply corrects an error in the February 7, 2002, rule.

Accordingly, make the following corrections to FR Doc. 02-1919 published at 67 FR 5890 on February 7, 2002:

On December 11, 2001, the State of Maryland submitted two separate formal revisions to its SIP. One SIP revision consists of (1) a revised reference to the Federal definition of VOC at 40 CFR 51.100(s) which is found in Maryland's definition for “volatile organic compounds (VOC)” (COMAR 26.11.01.01B(53)); and (2) revised references to the Federal PSD regulations at 40 CFR 52.21 found in both Maryland's definition of “prevention of significant deterioration (PSD) source” (COMAR 26.11.01.01B(37)) and the general regulation governing control of PSD sources (COMAR 26.11.06.14). These regulatory revisions became effective on December 10, 2001. The other SIP revision expands and clarifies the type of records and information which Maryland may require from installations and sources governs by its air pollution control regulations (COMAR 26.11.01.05). The revisions to this regulation became effective on June 30, 1997, and a subsequent clarifying amendment became effective on December 10, 2001. Maryland certified that public hearings on the revised regulations to COMAR 26.11.01.01B and 26.11.06.14 were held on October 23, 2001. Maryland also certified that public hearings were held on March 26 and March 28, 1997 on the first revision to COMAR 26.11.01.05, and additional hearings were held on October 23, 2001 on the second revision to COMAR 26.11.01.05. Maryland held these hearings in accordance with the requirements of 40 CFR 51.102.

Maryland has amended COMAR 26.11.01.01B(53) to update the Federal reference for incorporation of the EPA definition of VOC found at 40 CFR 51.100(s) from the 1999 edition (the currently SIP-approved version) to the 2000 edition of the Code of Federal Regulations (CFR). The amendment ensures that Maryland's definition of the term is identical to the Federal definition. EPA defines VOCs as any organic compound that contributes to ground-level ozone formation and lists as exclusions the compounds that have negligible photochemical reactivity. As EPA completes its reactivity testing, the list of exempt compounds expands. Since Maryland accepts the EPA test results on VOC exempt compounds, it is appropriate for Maryland to adopt the Federal definition of VOC as it appears in 40 CFR 51.100(s) as of a specified date. The 2000 edition of 40 CFR 51.100(s) does not add any new solvents, refrigerants or other compounds to the list of exempt VOCs.

The amendments to COMAR 26.11.01.01B(37) and COMAR 26.11.06.14 update the reference for incorporation of the Federal PSD regulations found at 40 CFR 52.21 from the 1999 edition to the 2000 edition. This edition of 40 CFR 52.21 does not add, amend, or remove any provisions when compared to the 1999 edition of 40 CFR 52.21. Therefore, EPA approves these 40 CFR cross-reference updates found in the definition of VOC at COMAR 26.11.01.01B(53) and the PSD provisions found at COMAR 26.11.01.01B(37) and 26.11.06.14.

Maryland has extensively revised the provisions of this regulation when compared to the SIP-approved version. Maryland's revised regulation expands the scope of entities which the State may require to establish and maintain records, in a format approved by the Maryland Department of the Environment (MDE), sufficient to provide the information, such as material and fuel use, necessary to:

(1) Assist the MDE in the development of an implementation plan, air emissions standard, equipment performance standard, or material formulation standard;

(2) Determine compliance with an air emissions standard, equipment performance standard, material formulation standard, or permit condition;

(3) Verify or update registration information; or

(4) Update Maryland's air emissions inventory.

Under the revised provision, the State can require a person who owns or operates such installation or source, upon request, to supply the requested information to the MDE, summarizing the information in a format approved by the MDE and on a schedule specified by the MDE. The current SIP provision applies only to fuel suppliers. Maryland's 1998 and 2001 amendments have expanded the scope of this rule to include a person who owns or operates an installation or source, as defined in COMAR 26.11.01.01B(19) and 26.11.01.01B(43) respectively. Both of these definitions are included in the current Maryland SIP. In its support document accompanying this SIP revision which provided justification for the amended provisions, Maryland stated that this amendment is intended to require owners and operators of applicable sources, when requested, to establish and maintain records as well as provide information to the Maryland Department of the Environment (MDE) on operating data, materials consumption, materials formulation, and similar information necessary to quantify air emissions and determine compliance. According to the State, most major facilities have specific record keeping requirements established in a source-specific regulation or by a permit condition. Maryland concludes that there would be little or no economic impact from the revised provisions because entities subject to this rule already maintain information such as fuel use, equipment use, and production rates as part of their normal business practice.

EPA has reviewed the revisions to COMAR 26.11.01.05 and has determined that the revised provisions are consistent with the requirements of 40 CFR part 51, subpart K (Source surveillance), particularly the requirements for determining compliance with the applicable rules and regulations (40 CFR 51.210) and for requiring owners or operators of stationary sources to maintain records and periodically report to the State such information which will enable the State to determine compliance with applicable portions of the control strategy (40 CFR 51.211). In addition, EPA has determined that the revised provisions would enhance Maryland's ability to comply, as needed, with the requirements of 40 CFR part 51, subpart G (Control strategy), particularly sections 51.114 (Emissions data and projections), and 51.116 (data availability). At the same time, EPA agrees with Maryland's assertion that having installations and sources provide such information presents no undue burden since such information is maintained during the course of normal business practice, or is already required by a source-specific regulation or by a permit condition. Therefore, EPA approves the revised version of COMAR 26.11.01.05 as a revision to the Maryland SIP.

EPA is approving revisions to the Maryland SIP that update the references to the EPA definition of VOC found at 40 CFR 51.100(s) (COMAR 26.11.01.01B(53)), and the Federal PSD regulations at 40 CFR 52.21 (COMAR 26.11.01.01B(37) and 26.11.06.14). EPA is also approving as a revision to the Maryland SIP the State's revised general records and information requirements for installations and sources (COMAR 26.11.01.05). EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment since the revisions are administrative changes to the state regulations. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on July 29, 2002 without further notice unless EPA receives adverse comment by June 27, 2002. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have 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 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does 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 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. 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 . This rule is not a “major rule” as defined by 5 U.S.C. 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 July 29, 2002. 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 to approve Maryland's revised definition of VOC, revised PSD requirements, and the revised general records and information requirements for installations and sources may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

EPA is publishing this rule without prior proposal because we view it as a noncontroversial action. We anticipate no significant adverse comment because of the site-specific nature of this action and because we are merely extending a variance that is already in effect, and which has already been the subject of notice and opportunity for comment. In the three years since we granted the original variance, no new treatment options have become available to treat these two waste streams more effectively. Having said this, in the “Proposed Rules” section of today's Federal Register publication, we are publishing a separate document that will serve as the proposal to grant this variance if significant adverse comments are filed. See the proposed rule for information on submitting comments.

This direct final rule will be effective on July 12, 2002, without further notice unless we receive adverse comment by June 27, 2002. If we receive significant adverse comment, we will publish a timely withdrawal in the Federal Register indicating that this direct final rule action is being withdrawn due to adverse comment on the proposed rule. We will then address all public comments, as appropriate, based on the proposed rule. Any parties interested in commenting on this treatment variance must do so at this time.

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

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

The Agency recognizes that there may be wastes that cannot be treated to levels specified in the regulations (see 40 CFR 268.40) because an individual waste matrix or concentration can be substantially more difficult to treat than those wastes the Agency evaluated in establishing the treatment standard (51 FR 40576, November 7, 1986). For such wastes, EPA has a process by which a generator or treater may seek a treatment variance. See 40 CFR 268.44. If granted, the terms of the variance establish an alternative treatment standard for the particular waste at issue.

In the so-called Third Third rule (55 FR 22521, June 1, 1990), we used performance data from the stabilization of a selenium D010 mineral processing waste, which we determined to be the most difficult to treat selenium waste, to set the national treatment standard for selenium. This waste contained up to 700 ppm total selenium and 3.74 mg/L selenium in the TCLP leachate. The resulting post-treatment selenium TCLP levels were between 1.80 and 0.154 mg/L, which led to our establishment of a national treatment standard of 5.7 mg/L for D010 selenium nonwastewaters. At that time, EPA also had information indicating that wastes containing high concentrations of selenium are rarely generated and land disposed and, therefore, concluded that the standard of 5.7 mg/L was achievable.

In the Phase IV final rule, the Agency determined that a treatment standard of 5.7 mg/L, as measured by the TCLP, continued to be appropriate for D010 nonwastewaters (63 FR 28556, May 26, 1998). The Agency also changed the universal treatment standard (UTS) for selenium nonwastewaters from 0.16 mg/L to 5.7 mg/L. In the preamble to the Phase IV final rule, we noted that we received comments from one company, Chemical Waste Management (CWM), indicating that they were attempting to stabilize selenium wastes with concentrations much higher than those EPA was examining to establish the national selenium standard. In response, we indicated that for these high-level selenium waste streams, we would propose a site-specific treatment variance.

As we just mentioned, in the preamble to the Phase IV rule we said we would propose a site-specific treatment variance for high selenium waste streams. We proposed this treatment variance on October 23, 1998 (63 FR 56886) and subsequently finalized it in a May 26, 1999 Federal Register notice (64 FR 28387). The variance was for a three-year period from the date of signature (i.e., May 11, 1999) and it covered two specific waste streams: An electrostatic precipitator dust from Owens Brockway; and a dry scrubber solid from Ball Foster (now St. Gobain). Both waste streams contain relatively high leachable selenium concentrations. As we mentioned in the original treatment variance, CWM presented data showing that selenium TCLP concentrations in the untreated wastes are one to three orders of magnitude higher than the untreated mineral processing wastes that EPA used to develop the current D010 selenium treatment standard. 1 The data also showed that neither treated waste stream can reliably meet the numerical standard of 5.7 mg/L, as measured by the TCLP, even though CWM shows that they were using the treatment technology on which EPA based the selenium treatment standard. 2

In the May 26, 1999 Federal Register notice, we established the following alternative treatment standards for selenium: 51 mg/L TCLP for Owens Brockway; and 25 mg/L TCLP for Ball Foster (now St. Gobain). We also included a requirement that CWM submit to EPA an annual report containing any analytical data from studies using alternative treatment technologies, data showing the stabilization recipes they are using to meet the alternative treatment standards, and the untreated and treated selenium concentrations in these wastes.

On June 8, 2000 and May 7, 2001, CWM submitted, respectively, the first and second annual reports to the Agency. 3 On March 25, 2002, CWM submitted a letter to EPA requesting a continuation of the treatment variance for another three-year period. In the letter, CWM states that because both wastes continue to have elevated levels of leachable selenium, they are unable to achieve the selenium treatment standard consistently. CWM also asserts that they are unaware of any additional reagents that would be more effective in the treatment process.

Under 40 CFR 268.44 (h), EPA allows facilities to apply for a site-specific variance when a waste generated under conditions specific to only one site cannot be treated to the specified level(s). In such cases, the generator or treatment facility may apply to the Administrator, or EPA's delegated representative, for a site-specific variance from a treatment standard.

In 40 CFR 268.44 (h)(1) and (2), EPA describes the two main cases in which we will grant a treatment variance. The case described in 40 CFR 268.44 (h)(1) is applicable to this treatment variance, which addresses process wastes that are generated on a routine basis by two glass manufacturing companies. Basically, EPA must determine if the petitioner has adequately shown that, “It is not physically possible to treat the waste to the level specified in the treatment standard * * * because the physical or the chemical properties of the waste differ significantly from the waste analyzed in developing the treatment standard. * * *”

After careful review of the original treatment variance and of the data that CWM has submitted since we granted the original treatment variance, we conclude that CWM has adequately demonstrated that the wastes continue to satisfy the requirements for a treatment variance under 40 CFR 268.44 (h)(1).

The two glass manufacturing waste streams continue to differ significantly in chemical composition from the waste used to generate the original selenium treatment standard. Selenium TCLP concentrations in the untreated wastes continue to be one to three orders of magnitude higher than the concentrations in the waste used in developing the treatment standard for D010 hazardous wastes. Furthermore, CWM continues to use stabilization as the treatment technology, which is consistent with EPA's determination of BDAT, and the process is well-designed and operated. 4

As we mentioned in the preamble to the original treatment variance, treatment of these two wastes is especially difficult because of the presence of other metals (i.e., arsenic, cadmium, chromium, and lead) above their respective characteristic levels. It is difficult, if not impossible, to optimize treatment for selenium when other metals are being treated because the selenium solubility curve differs from that of most other metals. 5

Therefore, EPA is today granting an extension to the site-specific treatment variance from the D010 treatment standards for the two waste streams in question since the wastes cannot be physically treated to the level specified in the regulations. Today's alternative treatment standards will provide sufficient latitude for CWM to treat the other metals present in the wastes to LDR treatment standards and, by raising the selenium treatment standard, will avoid the difficulty posed by the different metal solubility curves.

This variance applies to the following two waste streams that are generated during glass manufacturing operations: electrostatic precipitator dust from Owens Brockway Glass Container Company; and dry scrubber solid from St. Gobain (formerly Ball Foster).

When we originally set the alternative treatment standard for the Owens Brockway waste, we determined the most effective stabilization recipe consisted of 0.7 parts iron sulfate combined with 2.0 parts cement, resulting in a reagent to waste ratio of 2.7 to 1. This recipe achieved final selenium TCLP values of 36.8, 34.08, and 43.7 mg/L. 6 We then used the BDAT methodology  7 to calculate an alternative D010 standard of 51 mg/L, as measured by the TCLP.

In the approximately three years the treatment variance has been in effect, CWM has treated 26 batches of the Owens Brockway waste. Untreated selenium TCLP values ranged from 26.5-649 mg/L, with an average value of about 265 mg/L. Treated TCLP values range from non-detect to 32.6 mg/L, with an average value of about 12.5 mg/L. Because the TCLP values in the untreated and treated wastes are comparable to the levels in the wastes we used to set the original alternative treatment standard of 51 mg/L, we determined that a TCLP value of 51 mg/L continues to be the appropriate alternative treatment standard for this waste.

When we originally set the alternative selenium treatment standard for the Ball-Foster waste, we determined the most effective stabilization recipes have reagent to waste ratios of 1.8, 2.2, 2.3, 2.4, and 2.7. Selenium concentrations in the treated wastes were 11.6, 7.47, 8.22, 15.6, and 4.82 mg/L, as measured by the TCLP. 8 Using these five data points, we calculated an alternative treatment D010 standard of 25 mg/L, as measured by the TCLP.

In the approximately three years the treatment variance has been in place, CWM has treated seven batches of the Owens Brockway waste. Untreated selenium TCLP values ranged from 33.5-43.9 mg/L, with an average value of about 38.9 mg/L. Treated TCLP values range from 1.6 to 14.6 mg/L, with an average value of about 8.7 mg/L. Because the TCLP values in the untreated and treated wastes are comparable to the levels in the wastes we used to set the original alternative treatment standard of 25 mg/L, we determined that a TCLP value of 25 mg/L continues to be the appropriate alternative treatment standard for this waste.

After treatment to these alternative selenium standards, CWM may dispose of the treated wastes in a RCRA Subtitle C landfill  9 provided CWM complies with any other applicable treatment standards associated with these wastes, including other applicable Federal, State, or local requirements as specified in the facility's waste analysis plan. We are granting this variance for three years for reasons discussed in section IV below.

In summary, after evaluating the data from the three years that the treatment variance has been in place, we have determined that the conditions that were present when we originally granted this treatment variance still exist: the two glass manufacturers continue to produce these high selenium waste streams; the untreated and treated selenium concentrations continue to be one to three orders of magnitude higher than the wastes we used to set the original selenium treatment standard; and alternative treatment options have not been established to more effectively treat these wastes.

We also note that although the alternative selenium standards for these two wastes are relatively high, this treatment variance is a technically necessary compromise. As noted above and in the May 12, 1997 Federal Register (62 FR 26045), treatment cannot be optimized for both acid and base-soluble metals due to their different solubility curves. Because all of the other toxic metals ( i.e., arsenic, cadmium, chromium, and lead) are being immobilized to meet their respective universal treatment standards, we consider, under the circumstances, that threats are being minimized if the alternative selenium treatment standards are met, as required by 3004 (m).

Furthermore, not only are all of the other toxic metals meeting their respective UTS standards, but the alternative selenium treatment standards essentially require CWM to use a well-designed and well-operated treatment system that is consistent, particularly in terms of the selection of reagents and reagent to waste ratios, with the technical basis for the current selenium treatment standard.

We are granting this treatment variance for another three-year period. Again, we believe the conditions that led us to set the original three-year limit still exist. To be more specific, because selenium is a non-renewable resource, and because the wastes in question contain high selenium concentrations, one potential avenue that we want to continue to explore is whether the selenium component could be recycled in an environmentally sound manner instead of being stabilized and landfilled. 10 Over the next three years, we also intend to work with the two glass manufacturers to better understand the processes that generate these waste streams and to explore whether opportunities exist to reduce the amount of selenium that ultimately is disposed.

For the three-year period, we expect CWM to update us annually on the alternative treatment technologies they are investigating and to submit any analytical data from studies using these alternative technologies. We ask that CWM's submission also include information showing which stabilization recipe they are using to meet the alternative treatment standards, the selenium concentrations in untreated wastes, and the analytical results from these treated wastes. We intend to use this information to determine, among other things, if there are any reductions in the amount of selenium that ultimately is disposed and if the alternative treatment standards for selenium are appropriate as a more permanent standard for these wastes.

At the end of the three-year period, today's alternative treatment standards expire. Thus, if the two glass manufacturers continue to generate these wastes with commensurate selenium levels, and if CWM has not found a new treatment technology to treat the two wastes to the national treatment level for D010 selenium wastes (or if the Agency has not adopted more permanent alternative treatment standards for these two wastes), then CWM and/or the generators of the two waste streams will have to re-open discussions with EPA about the most appropriate course of action for future management of these waste streams.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Agency must determine whether a regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

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

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

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

This treatment variance does not create any new regulatory requirements. Rather, it establishes alternative treatment standards for two specific wastes that replace standards already in effect, and it only applies to the CWM facility in Kettleman City, California. Therefore, I hereby certify that this rule will not have a significant economic impact on a substantial number of small entities. This rule, therefore, does not require a regulatory flexibility analysis.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under Section 202 of the UMRA, EPA generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. If a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives. Under section 205, EPA must adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule, unless the Administrator publishes with the final rule an explanation why that alternative was not adopted. The provisions of section 205 do not apply when they are inconsistent with applicable law.

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

Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

EPA has determined that this rule will not significantly or uniquely affect small governments. This rule will not impose any requirements on small entities. This treatment variance does not create any new regulatory requirements. Rather, it establishes alternative treatment standards for two specific wastes that replace standards already in effect. Today's rule is not, therefore, subject to the requirements of section 203 of UMRA.

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

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

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

Today's variance applies to two D010 waste streams that will be treated by Chemical Waste Management, Inc. at their Kettleman City, California facility and disposed of in a RCRA Subtitle C landfill, ensuring protection to human health and the environment. Therefore, the Agency does not believe that today's rule will result in any disproportionately negative impacts on minority or low-income communities relative to affluent or non-minority communities.

This variance only changes the treatment standards applicable to two D010 waste streams at the Chemical Waste Management, Inc. facility in Kettleman City, California. It does not change in any way the paperwork requirements already applicable to these wastes. Therefore, this rule is not affected by the requirements of the Paperwork Reduction Act.

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

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

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

This rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. This treatment variance does not create any new regulatory requirements. Rather, it establishes alternative treatment standards for two specific wastes that replace standards already in effect. Thus, Executive Order 13175 does not apply to this rule.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of governments.”

This rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This treatment variance does not create any new regulatory requirements. Rather, it establishes alternative treatment standards for two specific wastes that replace standards already in effect. Thus, Executive Order 13132 does not apply to this rule.

This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Further, we have concluded that this rule is not likely to have any adverse energy effects.

The Congressional Review Act, 5 U.S.C. 801, et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. 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. 804(2). This rule will be effective July 12, 2002.

This order adopted February 29, 2000 revises 47 CFR 1.8002 and 1.8004 to make nonsubstantive, editorial revisions. The Commission's rules are amended as set forth:

According, pursuant to § 0.231(b) of the Commission's rules, 47 CFR 0.231(b), that sections 1.8002(b)(1), 1.8004(c), and 1.8004(d) of the Commission's rules, 47 CFR 1.8002(b)(1), 1.8004(c), and 1.8004(d), are AMENDED as set forth in the rule changes.

On May 3, 1989, we published a final rule (54 FR 18890) amending the brake applications and release timing requirements of Standard No. 121, Air brake systems. Under Standard 121, pneumatic brake systems must meet a number of performance requirements when subjected to testing that includes both on-road and dynamometer testing. One of the aspects of brake system performance measured by Standard No. 121 is how quickly brakes are applied once the brake pedal is depressed and how quickly the brakes release after the brake pedal is allowed to return to its original position. The 1989 final rule modified the existing application and release timing requirements and made several changes in how these application and release times are measured. One of the changes involved the test device, the trailer test rig, used in the timing tests. Due to this change, a schematic diagram of the test device to be used until the new timing requirements became effective on May 3, 1991, was re-labeled as Figure 1(a).

Mr. Robert J. Crail submitted a petition for rulemaking to NHTSA dated July 17, 2000 requesting that Figure 1(a) be deleted from Standard No. 121. Mr. Crail's petition correctly indicated that Figure 1(a) depicts a trailer test rig no longer used in the standard. The petition requested that Figure 1(a) be deleted because Figure 1 depicts the only trailer test rig now used in the standard. NHTSA granted the petition on April 6, 2001, indicating that it would review the issue to determine if further action would be appropriate.

The agency has reviewed this issue and concluded that Figure (1)(a), which is now obsolete, should be deleted. NHTSA also has reviewed Standard No. 121 for other errors and omissions and is correcting these matters in this technical amendment. The agency believes that none of these corrections will change the substantive requirements of the Standard or have any effect on manufacturers of vehicles subject to Standard No. 121.

As noted above, this technical amendment deletes Figure 1(a) depicting an obsolete trailer test rig. S6.1.13(b) which describes the pressure characteristics of the old trailer test rig depicted in Figure 1(a), is also being deleted. S6.1.13(a) which references the currently-used trailer test rig in Figure 1, is renumbered as S6.1.13.

NHTSA is also correcting other typographical errors and omissions. The last sentence of S5.4.1.1 currently states “after each stop, rotate the brake drum or disc until the temperature of the brake falls to between 125 °F. And 200 °F.” This sentence is being corrected by deleting the period after “125 °F” and removing the capitalization of the A in “and” to join the two sentences. As corrected, the last section of the sentence states “between 125 °F and 200 °F.” S6.1.2 states that “the inflation pressure is as specified by the vehicle manufacturer for the GVWR.” The word “tire” is now being inserted before the word “inflation.” Prior to this technical amendment, S6.1.8 included this sentence:

We are now correcting S6.1.8 by replacing “1 mph” with “1 mile” so the sentence states “If the vehicle cannot attain a speed of 40 mph in 1 mile, continue * * *” Prior to the technical corrections set forth in this notice, S6.2.5 stated, in part, that “the rate of brake drum or disc rotation on a dynamometer or responding to the rate of rotation * * *” This phrase contained a typographical error as the words “or responding” were originally intended to be the single word “corresponding.” NHTSA now amends this section of S6.2.5 to state “the rate of brake drum or disc rotation on a dynamometer corresponding to the rate of rotation * * *”

Several errors in tables and figures are also being corrected. Table III specifies brake chamber pressures that relate to brake retardation forces in the dynamometer test requirements in S5.4.1 Brake retardation force. NHTSA is modifying Table III to remedy a typographical error in the heading for the first column of the table. The column heading incorrectly read “Column 1, Brake Retardation Force, GAWR.” The comma in between the word “Force” and the abbreviation “GAWR” is being modified to reflect that the numbers in Column 1 are the quotient of brake retardation force divided by gross axle weight rating. The column heading is being changed to “Brake Retardation Force/GAWR.”

A correction is also being made to the rated brake chamber volumes presented in Table V. In a final rule published in the Federal Register on July 11, 1996, (61 FR 36516) NHTSA revised the rated brake chamber volumes for long-stroke brake chambers in Table V. However, the revised brake volumes were never were put into Table V. Therefore, the correct values from the July 11, 1996, final rule are now being put into Table V.

NHTSA is also inserting a new section into the Standard. Standard No. 121 establishes brake performance requirements employing both dynamometer and road tests to measure braking force. Both tests require that brake temperatures be monitored before and during testing and each test must be performed when the brakes are in a certain temperature range. In order to assist those performing the dynamometer test, S6.2.4 provides guidance on the placement and mounting of temperature sensing devices on the brake shoes and contains a reference to a diagram contained in Figure 2. However, reference to Figure 2 and guidance on the installation of temperature sensing devices were omitted from the conditions for the road test contained in S6.1. In order to remedy this omission, S6.1 is amended to add a new paragraph, S6.1.16, outlining temperature sensor installation:

We find for good cause that notice and the opportunity to comment on these technical amendments are unnecessary and contrary to the public interest. As noted above, the agency believes that none of these corrections will change the substantive requirements of the Standard or have any effect on manufacturers of vehicles subject to Standard No. 121.

This notice has not been reviewed under E.O. 12866. After considering the impacts of this rulemaking action, NHTSA has determined that the action is not significant within the meaning of the Department of Transportation regulatory policies and procedures. The final rule makes no substantive changes. The impacts are so minimal as not to warrant the preparation of a full regulatory evaluation.

The agency has also considered the effects of this action in relation to the Regulatory Flexibility Act. For the reasons discussed above, I certify that this action would not have a significant economic impact upon “a substantial number of small entities.” The amendment is intended to assist potential applicants for temporary exemptions, including small businesses, to understand agency procedures so that, if a request for confidentiality is made, the documentation will be complete at the time the request is made. It is also designed to provide guidance as to arguments the agency considers relevant in making decisions upon exemption applications. Governmental jurisdictions will not be affected at all since they are generally neither importers nor purchasers of nonconforming imported motor vehicles.

The agency has analyzed this action in accordance with the principles and criteria contained in Executive Order 12612 “Federalism” and determined that the action does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

NHTSA has analyzed this action for purposes of the National Environmental Policy Act and concludes that the action will not have a significant effect upon the environment because it is anticipated that the annual volume of motor vehicles produced or imported will not vary from that existing before promulgation of the rule.

This final rule will not have any retroactive effect. Under 49 U.S.C. 30103, whenever a Federal motor vehicle safety standard is in effect, a state may not adopt or maintain a safety standard applicable to the same aspect of performance which is not identical to the Federal standard. A procedure is set forth in 49 U.S.C. 30161 for judicial review of final rules establishing, amending or revoking Federal motor vehicle safety standards. That section does not require submission of a petition for reconsideration or other administrative proceedings before parties may file suit in court.

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the cost, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually. Since this final rule will not have a $100 million effect, no Unfunded Mandates assessment has been prepared.

A technical revision to 49 CFR 1109.3 is made to change the reference (relating to the confidentiality of ADR procedures) from “5 U.S.C. 584” to “5 U.S.C. 574” to reflect the transfer made by Public Law 102-354, section 3(b)(2), August 26, 1992, 106 Stat. 944. Because this change is merely a technical correction, it is being implemented without requesting public comment.

Small Entities: The Board certifies that this rule will not have a significant economic effect on a substantial number of small entities.

Environment: This action will not significantly affect either the quality of the human environment or the conservation of energy resources.

In this proceeding, in addition to amending its regulations as indicated in the summary, the Board updated its records as to those persons currently available and possessing the requisite qualifications ( i.e., those experienced in rail transportation or economic issues similar to those arising before the Board) to serve as an arbitrator under 49 CFR part 1108. A copy of the list can be obtained from the Board's Office of Public Services, Suite 840, Surface Transportation Board, 1925 K Street, NW, Washington, DC 20423-0001; telephone (202) 565-1592.

Additionally, the Board obtained comments from interested parties on whether binding arbitration of small rail rate disputes should be mandated through legislation. The comments reflect a divergence of views on this subject and no areas of consensus. The Board will provide a report to Congress summarizing the comments received.

Additional information is contained in the Board's decision. To purchase a copy of the decision, write to, call or pick up in person from Da -2-Da Legal, Room 405, 1925 K Street, NW, Washington, DC 20006, telephone (202) 293-7776. The decision is also posted on the Board's Web site at www.stb.dot.gov.

The Board certifies that this rule will not have a significant economic effect on a substantial number of small entities.

This action will not significantly affect either the quality of the human environment or the conservation of energy resources.

Chorizanthe robusta var. robusta, also known as robust spineflower or Aptos spineflower, is endemic to sandy soils in central California. The taxon is currently found in southern Santa Cruz County. Plants formerly considered C. r. var. robusta, but whose identity is now questioned, are found in northern Monterey County. Historically, C. r. var. robusta was also known from Alameda, San Mateo, and Santa Clara Counties. In California, the spineflower genus ( Chorizanthe ) in the buckwheat family (Polygonaceae) comprises species of wiry annual herbs that inhabit dry sandy soils, both along the coast and inland. Because of the patchy and limited distribution of such soils, many species of Chorizanthe tend to be highly localized in their distributions.

Like other spineflowers, Chorizanthe robusta var. robusta is branched from the base, which has a cluster of leaves arising from the base of the stem. The overall appearance of C. r. var. robusta is that of a low-growing herb that is soft-hairy and grayish or reddish in color. The plant has an erect to spreading or prostrate habit, with large individuals reaching 50 centimeters (cm) (20 inches (in)) or more in diameter. This taxon is distinguished by white (rarely pinkish) scarious (translucent) margins on the lobes of the involucre (circle or collection of modified leaves surrounding a flower cluster) or head that subtend the white- to rose-colored flowers. The aggregate of flowers tends to be 1.5 to 2.0 cm (0.6 to 0.8 in) across in diameter and distinctly aggregate. Each flower produces one seed; the seeds are 3.5 to 4.0 millimeters (0.14 to 0.16 in) long.

Chorizanthe robusta var. robusta is one of two varieties of the species Chorizanthe robusta. The other variety ( Chorizanthe robusta var. hartwegii ), known as Scotts Valley spineflower, is restricted to the Scotts Valley area in the Santa Cruz Mountains. The range of C. r. var. robusta partially overlaps with Chorizanthe pungens var. pungens (Monterey spineflower), another closely related taxon in the Pungentes section of the genus, in southern Santa Cruz County. Chorizanthe pungens var. pungens is a threatened species and Chorizanthe robusta var. hartwegii is an endangered species; for a detailed description of these related taxa, see the Draft Recovery Plan for the Robust Spineflower (Service 2000) and references within the plan. We are designating critical habitat for Chorizanthe pungens var. pungens and Chorizanthe robusta var. hartwegii in separate Federal Register rules.

Chorizanthe robusta var. robusta is a short-lived annual species. It germinates during the winter months and flowers from April through June. Pollinators observed on C. r. var. robusta include six species of flies, including two species of bee flies (Bombyliidae) and two species of syrphid flies (Syrphidae); three species of beetles, including ladybird beetles (Coccinelidae); honey bees ( Apis mellifera ); bumblebees (Apidae); leaf cutter bees (megachilids); at least six species of butterflies, including one species in the Nymphalidae family; sphecid wasps; and ants (Randy Morgan, biologist, Soquel, California, pers. comm., 2000; S. Baron, in litt., 2000; Annie Murphy, Pacific Gas and Electric Company, in litt., 2001). In other annual species of Chorizanthe, the flowers are protandrous, a reproductive strategy in which the anthers (part of flower that produces pollen) mature and shed pollen prior to the maturation of the style (part of the female reproductive structure of a flower) to receive pollen, with a delay of style receptivity of 1 or 2 days. Protandry facilitates cross-pollination by insects. However, if cross-pollination does not occur within 1 or 2 days, self-pollination may occur as the flower closes at the end of the day (Reveal 2001). The relative importance of insect pollination and self-pollination to seed set is unknown; however, in the closely related C. p. var. pungens ), the importance of pollinator activity in seed set was demonstrated by the production of seed with low viability where pollinator access was limited (Harding Lawson Associates 2000).

Seed is mature by August. The plants turn a rusty hue as they dry through the summer months, eventually shattering during the fall. Seed dispersal is facilitated by the involucral spines, which attach the seed to passing animals. Black-tailed hares ( Lepus californicus ) have been observed to browse on Chorizanthe robusta var. robusta (S. Baron, in litt., 2000), and most likely act to disperse seeds as well. Other animals likely to assist in seed dispersal include, but are not limited to, mule deer ( Odocoileus hemionus ), gray foxes ( Urocyon cinereoargenteus ), coyotes (Canis latrans), bobcats ( Felis rufus ), ground squirrels ( Otospermophilus beecheyi ), striped skunks ( Mephitis mephitis ), opossums ( Didelphis virginiana ), racoons (Procyon lotor), and other small mammals and birds. While animal vectors most likely facilitate dispersal between populations, or within portions of populations, the prevailing coastal winds undoubtedly play a part in scattering seed within colonies and populations.

For annual plants, maintaining a seed bank (a reserve of dormant seeds, generally found in the soil) is important to year-to-year and long-term survival (Baskin and Baskin 1978). A seed bank includes all of the seeds in a population and generally covers a larger area than the extent of observable plants seen in a given year (Given 1994). The number and location of standing plants (the observable plants) in a population varies annually due to a number of factors, including the amount and timing of rainfall, temperature, soil conditions, and the extent and nature of the seed bank. The extent of seed bank reserves is variable from population to population, and large fluctuations in the number of standing plants at a given site may occur from one year to the next. Depending on the vigor of the individual plant and the effectiveness of pollination, dozens, if not hundreds of seeds could be produced. In one study at Sunset State Beach, individual Chorizanthe robusta var. robusta plants had an average of 126 flowers, and an average seed set of 51 seeds per plant (S. Baron, pers. comm., 2001). The production of seed itself does not guarantee production of future reproductive individuals for several reasons: seed viability may be low, as has been found in other species of Chorizanthe (Bauder 2000); proper conditions for germination may not be present in most years; and seedling mortality may result from withering before maturity, herbivory, or uprooting by gopher activity (Baron 1998). At one site, seedling mortalities of 42 and 31 percent in 1998 and 2000, respectively, were caused in C. r. var. robusta primarily by a larval microlepidoptera from the family Gelichiideae (Baron 2000).

While sites that support large populations of Chorizanthe robusta var. robusta most likely also support large seed banks and can sustain several years of poor weather or bouts of predation, sites that support smaller populations and smaller seed banks may be more vulnerable to extirpation. For example, the population of C. r. var. robusta at Sunset State Beach appears to be consistently large, with tens of thousands of individuals over the past decade. Also, the population that occurs within the Aptos unit numbered approximately 3,000 in the year 2000 (Taylor 2000); based on only 1 year of observation, this appears to be the second largest population of C. r. var. robusta . However, five other known populations have been estimated to support 1,500 or fewer plants, though in some cases, the estimate has been based on only 1 year of observation: the Pogonip population comprised 800 individuals in the year 2000 (Baron 2000); the Branciforte population comprised approximately 500 individuals in the year 2001 (Connie Rutherford, Service, in litt., 2001); the Freedom unit supported approximately 500 individuals in 1995 (California Natural Diversity Data Base (CNDDB) 2001); the Buena Vista population supported approximately 1,500 individuals in 1999 (Baron 1999b); and the Wilder Creek population approximated 1,000 individuals in 2001 (Gray Hayes, in litt., 2001).

The locations where Chorizanthe robusta var. robusta occurs are subject to a mild maritime climate, where fog helps keep summer temperatures cool and winter temperatures relatively warm, and provides moisture in addition to the normal winter rains. Chorizanthe robusta var. robusta is currently known from a total of eight sites, six of which are included in this critical habitat designation. One of these sites is located on active coastal dunes (Sunset State Beach), while the other sites are located inland from the immediate coast in sandy openings within scrub, maritime chaparral, or oak woodland habitats. All of these habitat types include microhabitat characteristics that are favored by C. r. var. robusta . First, all sites are on sandy soils; whether the origin of the soils are from active dunes or interior fossil dunes appears unimportant. The most prevalent soil series represented are Baywood, Ben Lomond, Zayante, Tierra, and Watsonville (Soil Conservation Service 1980). Second, these sites are relatively open and free of other vegetation; sandy soils tend to be nutrient-poor, which limits the abundance of other herbaceous species that can grow on them. However, if these soils have been enriched, either through the accumulation of organic matter or importation of other soils, these sandy soils may support more abundant herbaceous vegetation which may then compete with C. r. var. robusta . Management of the herb cover, through grazing, mowing or fire, may allow the spineflower to persist. In scrub and chaparral communities, C. r. var. robusta does not occur under dense stands, but will occur between more widely spaced shrubs. Controlled experiments in altering soil and shade regimes for the closely related Ben Lomond spineflower ( Chorizanthe pungen s var. hartwegiana ) showed that plants grown on their native low-nutrient soil were less successful (measured by flower production and total biomass) than those grown on adjacent soils with a higher organic matter content. Furthermore, plants grown in high shade were less successful than those grown in low or no shade. These results indicate that the plants grow on sandy soils because their nutrient-poor nature tends to restrict the growth of other species that would compete with the spineflower for light (McGraw and Levin 1998).

According to information included in the CNDDB, Chorizanthe robusta var. robusta once ranged from Alameda County, on the eastern side of San Francisco Bay, south to northern Monterey County—a range of approximately 160 kilometers (km) (100 miles (mi)). The identity of the Alameda collections, however, is still unresolved; Reveal and Hardham (1989) noted that these collections may be more closely related to other spineflowers in the Pungentes section of the genus. Resolution of the identity of the Alameda collections is unlikely since the Alameda population was last collected in 1948, and the population at this site is believed to be extirpated (Service 2000). Other historic collections were made from Colma in San Mateo County, Los Gatos and San Jose in Santa Clara County, and several locations in Santa Cruz and Monterey Counties. The species is believed to be extirpated at all of these sites (Service 2000). The current distribution of Chorizanthe robusta var. robusta is restricted to coastal and near-coastal sites in southern Santa Cruz County, ranging from Pogonip Park in the city of Santa Cruz, southeast to coastal dunes at Sunset State Beach. One other currently occupied location is also found in northern Monterey County, but the identity of the plants at the site has recently come into question (see below, Summary of Changes From the Proposed Rule, item 5).

At the time of the proposed rule, we were aware of seven sites with Chorizanthe robusta var. robusta . At Pogonip Park, two C. r. var. robusta colonies occur on sandy soils derived from the Santa Margarita sandstone formation; one of these colonies is growing in sandy openings within a mixed forest community (S. Baron, in litt., 1999a; CNDDB 2000). Within the city of Santa Cruz, near where Highway 1 crosses Carbonera Creek (referred to as the Branciforte site), a population occurs in a field that supports grassland species, including Avena barbata (wild oats), Vulpia sp. (vulpia), Lupinus sp. (sky lupine), Eschscholzia californica (California poppy), Conyza sp. (telegraph weed), Navarettia atractyloides (navarretia), and Erodium sp. (filaree) (R. Morgan, pers. comm., 2000). At the Aptos site, C. r. var. robusta occurs in an opening within maritime chaparral on inland marine sand deposit (CNDDB 2000). At the Freedom site, C. r. var. robusta occurs in a grassy opening within maritime chaparral and oak woodland (Dean Taylor, Jepson Herbarium, Berkeley, California, in litt., 2000). At the Buena Vista site, C. r. var. robusta occurs on sandy soils in openings within oak forest and maritime chaparral (S. Baron, in litt., 1999b). The Buena Vista site also supports the endangered Santa Cruz long-toed salamander ( Ambystoma californiense ).

At Sunset State Beach, Chorizanthe robusta var. robusta is found at the base of backdunes in openings of coastal scrub, including Eriophyllum staechadifolium (seaside woolly sunflower), Artemisia pycnocephala (coastal sagewort), Ericameria ericoides (mock heather), and Baccharis pilularis (coyote bush) (CNDDB 2000). Chorizanthe pungens var. pungens grows in a band parallel to the C. r. var. robusta, in the foredunes along the beach (CNDDB 2000). The distribution of suitable habitat on coastal dunes is subject to dynamic shifts caused by patterns of dune mobilization, stabilization, and successional trends in coastal dune scrub that increase in cover over time. Individual colonies of C. r. var. robusta, found in gaps between stands of scrub, shift in distribution and size over time. The seventh site at which the species was thought to occur at the time of the proposed rule was on coastal dunes between Marina and Seaside on lands formerly known as Fort Ord, in northern Monterey County. The identity of the plants at this site has recently come into question (see below, Summary of Changes From the Proposed Rule).

During the public comment periods, we became aware of additional habitat that supports Chorizanthe robusta var. robusta, that we had not included in the critical habitat proposal. Two areas supporting C. r. var. robusta, but not included in the critical habitat designation, are considered new sites: (1) A location to the south of Empire Grade and north of Wilder Ranch State Park on private lands (G. Hayes, in litt., 2001) and (2) two places in Manresa State Beach. A third new area that came to our attention after we had proposed critical habitat is an expansion of the previously known location just east of Aptos High School on lands owned by the Pajaro Valley Unified School District (Vince Cheap, California Native Plant Society, in litt., 2000). This latter area is directly adjacent to the Freedom unit that is discussed in this rule.

Under the Act and the Administrative Procedure Act (APA) (5 U.S.C. 702 and 706), we are required to allow the public an opportunity to comment on the proposed rulemaking. Therefore, because these new areas were not included in the proposed rule, we are not including them in the final rule. Although these areas were not included in the critical habitat proposal, they may be important to the recovery of the species and could be included in recovery activities in the future.

Portions of the coastal dune, coastal scrub, grassland, chaparral, and oak woodland communities that support Chorizanthe robusta var. robusta have been eliminated or altered by recreational use, conversion to agriculture, and urban development. Dune communities have also been altered in composition by the introduction of non-native species, especially Carpobrotus spp. (sea-fig or iceplant) and Ammophila arenaria (European beachgrass), in an attempt to stabilize shifting sands. In the last decade, significant efforts have been made to restore native dune communities, including the elimination of these non-native species (California Department of Parks and Recreation (CDPR) 1995).

On May 16, 1990, we received a petition from the Santa Cruz Chapter of the California Native Plant Society to list Chorizanthe robusta var. hartwegii (Scotts Valley spineflower) as endangered. Based on a 90-day finding that the petition presented substantial information indicating that the requested action may be warranted (55 FR 46080), we initiated a status review of this taxon. During that time, we also reviewed the status of Chorizanthe robusta var. robusta. We proposed endangered status for the C. r. var. robusta on October 24, 1991 (56 FR 55107). The final rule, published on February 4, 1994, (59 FR 5499) listed C. robusta, inclusive of var. robusta and var. hartwegii, as endangered. At the time Chorizanthe robusta was listed, we found that designation of critical habitat for Chorizanthe robusta was prudent but not determinable and that designation of critical habitat would occur once we had gathered the necessary data.

On June 30, 1999, our failure to designate critical habitat for Chorizanthe robusta within the time period mandated by 16 U.S.C. 1533(b)(6)(C)(ii) was challenged in Center for Biological Diversity v. Babbitt (Case No. C99-3202 SC). On August 30, 2000, the U.S. District Court for the Northern District of California (court) directed us to publish a proposed critical habitat designation within 60 days of the court's order, and a final critical habitat designation no later than 120 days after the proposed designation is published. On October 16, 2000, the court granted our request for a stay of this order. Subsequently, by a stipulated settlement agreement signed by the parties on November 20, 2000, we agreed to propose critical habitat for Chorizanthe robusta var. robusta by January 15, 2001, and to publish a final rule by October 19, 2001. The plaintiffs subsequently agreed to, and the court approved, an extension until May 17, 2002, to complete the final rule.

Because the two varieties of Chorizanthe robusta are geographically and ecologically separated, critical habitat designations were developed separately. The proposed rule to designate critical habitat for Chorizanthe robusta var. robusta was sent to the Federal Register on January 16, 2001, and was published in the Federal Register February 15, 2001 (66 FR 10419). The proposed critical habitat designation included approximately 660 ha (1,635 ac) of lands in Santa Cruz and Monterey Counties as critical habitat. The publication of the proposed rule opened a 60-day public comment period, which closed on April 16, 2001. On May 3, 2001, we published technical corrections to the proposal to correct a mapping error that had been published in the proposal with respect to the location of Unit D (66 FR 22141). We accepted comments until June 4, 2001 on this correction. On September 19, 2001, we published a notice announcing the reopening of the comment period on the proposal to designate critical habitat for Chorizanthe robusta var. robusta, and a notice of availability of the draft economic analysis on the proposed determination (66 FR 48228). This second public comment period closed on October 19, 2001. On February 1, 2002, the Office of the Secretary of the Interior published a notice reopening the comment period until February 15, 2002 (67 FR 4940). The comment period was reopened to allow individuals to resubmit comments that we may not have received due to the Department's Internet access, including the receipt of outside e-mail, being shut down.

We contacted appropriate Federal, State, and local agencies, scientific organizations, and other interested parties and invited them to comment. In addition, we invited public comment through the publication of a legal notice in the Santa Cruz Sentinel on February 24, 2001. We received individually written letters from seven parties, which included three designated peer reviewers, two State agencies, one local jurisdiction, and one individual. Approximately 800 additional letters were submitted as part of a mailing campaign. Of the seven parties who did not respond as part of the mailing campaign, five supported the proposed designation and two were opposed. The 2 commenters opposing the proposal were specifically opposing designation of critical habitat on lands they own or manage, and were requesting that these areas be excluded from critical habitat designation. Of the 800 additional letters, 23 were opposed, 1 was neutral, and the remaining were in support of the critical habitat designation.

We reviewed all comments received for substantive issues and new information regarding critical habitat for Chorizanthe robusta var. robusta. Similar comments were grouped into general issues and are addressed in the following summary.

Comment 1: The University of California at Santa Cruz requested that their lands be excluded from the Pogonip unit of the critical habitat designation because no suitable habitat for Chorizanthe robusta var. robusta occurs there.

Our Response: For the proposed designation, we frequently used U.S. Geological Survey (USGS) Township/Range/Section boundaries to provide the legal description of the unit locations. The use of recently acquired high resolution aerial photographs dating from April 2000, and the use of Universal Transverse Mercator (UTM) coordinates to provide the legal descriptions, has enabled us to undertake more precise mapping for the final designation. After conducting this new analysis, we found that the University lands do not contain the primary constituent elements needed to ensure the conservation of C. r. var. robusta. Therefore, we removed these lands from the designation, reducing the size of the Pogonip unit from 165 ha (410 ac) to 64 ha (159 ac).

Comment 2: The Pajaro Valley Unified School District (District) requested that District lands be excluded from the Freedom unit because the unit was mapped inaccurately, and included buildings and landscaped areas.

Our Response: In the proposal, the map showing the location of the Freedom unit was in error. We published a technical correction in the Federal Register on May 3, 2001 (66 FR 22141). As discussed in Comment 1 above, we now have access to more recent aerial photos, and are able to map boundaries using UTM coordinates. Therefore, we are able to more accurately map areas containing the primary constituent elements. This 4-ha (10-ac) unit is comprised of local agency lands (Pajaro Valley Unified School District) and private lands. We modified the boundaries of this unit to eliminate several hundred square meters of a baseball field from one corner of the unit. However, some of the District's land contains Chorizanthe robusta var. robusta and its primary constituent elements and remains as part of unit D.

Comment 3: The CDPR commented that a population of spineflower observed at Manresa State Beach was Chorizanthe robusta var. robusta, and not Monterey spineflower ( Chorizanthe pungens var. pungens ), as the Service stated in a companion critical habitat proposal for Monterey spineflower.

Our Response: The records available to us at the time the two proposed critical habitat designations were being prepared for Chorizanthe pungens var. pungens and Chorizanthe robusta var. robusta indicated that the populations of spineflower at Manresa State Beach were Chorizanthe pungens var. pungens. A site visit was subsequently made by State Park staff and a local species expert to Manresa State Beach, and they clarified that the currently extant populations of spineflower at Manresa State Beach are C. r. var. robusta (C. Rutherford, in litt., 2001). However, since we were not aware of the presence of C. r. var. robusta at Manresa State Beach at the time of the proposed designation, we did not propose critical habitat for C. r. var. robusta at that location.

Under the Act and APA, we are required to allow the public an opportunity to comment on the proposed rulemaking. Therefore, because these populations were not in the proposed rule, we are unable to consider these areas in the final rule.

Comment 4: One peer reviewer suggested expanding the list of primary constituent elements to include such factors as seed germination requirements, substrate salinity, microreliefs and microclimates within local habitats, seasonal and yearly groundwater levels, and bird populations that migrate within the range of Chorizanthe robusta var. robusta.

Our Response: While we recognize that these factors may be important components of the habitats within which Chorizanthe robusta var. robusta is found, we do not have sufficient information at this time that indicates that they are the primary factors responsible for the distribution of C. r. var. robusta throughout its range.

In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited independent opinions from three knowledgeable individuals with expertise in one or several fields, including familiarity with the species, familiarity with the geographic region that the species occurs in, and familiarity with the principles of conservation biology. All three of the peer reviewers supported the proposal, and provided us with comments which were summarized in the previous section and incorporated into the final rule.

Based on a review of public comments received on the proposed determination of critical habitat, we have reevaluated our proposed designation and included several changes to the final designation of critical habitat. These changes include the following:

(1) We clarified the description of the primary constituent elements and changed the number of primary constituent elements from six to four elements. We believe that two of the primary constituent elements included in the proposed designation are better described as features of the landscape. The two primary constituent elements that were included in the proposed rule but deleted in the final rule are: pollinator activity between existing colonies of Chorizanthe robusta var. robusta, and seed dispersal mechanisms between existing colonies and other potentially suitable sites. The two deleted elements are features of the landscape discussed in the section of this rule entitled Special Management Considerations or Protections and therefore, we did not include them as primary constituent elements.

(2) We added a section describing the Special Management Considerations or Protections that Chorizanthe robusta var. robusta may require. We believe that this new section will assist land managers in developing management strategies for C. r. var. robusta on their lands.

(3) We made revisions to the unit boundaries. These changes were made based on information supplied by commenters, as well as the use of the high resolution aerial photos, indicating either that the primary constituent elements were not present in certain portions of the proposed unit, or that certain changes in land use had occurred on lands within the proposed designation that would preclude those areas supporting the primary constituent elements. The use of recently acquired high resolution aerial photographs dating from April 2000 enabled us to undertake this more precise mapping.

A brief summary of the modifications made on each unit is given below:

Modifications were made to this unit to exclude areas that do not contain the primary constituent elements, including urban and industrial areas, and heavily forested areas through the use of high resolution imagery. These modifications resulted in a reduction from 165 ha (410 ac) in the proposed rule to 64 ha (159 ac) that are primarily within Pogonip Park in the city of Santa Cruz.

Minor modifications were made to this unit to remove paved areas and heavily forested areas. These modifications resulted in a reduction from 5 ha (11 ac) to 4 ha (9 ac).

Modifications were made to this unit to remove heavily forested areas and areas with unsuitable soil types, while still maintaining connectivity between patches of suitable soil types. These modifications resulted in a reduction from 32 ha (78 ac) to 28 ha (70 ac).

Unit D consists of grasslands and sandy areas in openings within maritime chaparral and oak woodland. This 4-ha (10-ac) unit is comprised of private and Pajaro Valley Unified School District lands. This unit was modified to eliminate several hundred square meters of a baseball field from one corner of the unit.

Unit E consists of grasslands within maritime chaparral and oak woodland on the privately owned Buena Vista parcel. We modified the unit by removing lands in a watershed in which the Chorizanthe robusta var. robusta is not known to occur. These modifications resulted in a reduction from 75 ha (185 ac) to 55 ha (135 ac).

Unit F consists of coastal dune habitat, and is identical to critical habitat that is being designated for the Chorizanthe pungens var. pungens. Modifications were made to this unit to eliminate the beaches within the surf zone along the western boundary of this unit. The acreage included in this unit was reduced from 50 ha (130 ac) to 35 ha (86 ac). All of this unit is within Sunset State Beach.

In 1992, a population of what was believed to be Chorizanthe robusta var. robusta was discovered on the coastal dunes between Marina and Seaside (Monterey County), in the course of surveys performed in preparation for the transfer of Department of Defense (DOD) lands formerly known as Fort Ord to the CDPR; this same stretch of dunes also supports the threatened C. p. var. pungens and the threatened western snowy plover ( Charadrius alexandrinus nivosus ) (U.S. Army Corps of Engineers (ACOE) 1997). We originally proposed this unit due to the reported discovery of the C. r. var. robusta population and to establish a contiguous area of habitat along Monterey Bay because fragmentation of habitat is a threat to the species. However, based on subsequent discussions with the botanist and the project manager that directed the botanical surveys on these lands, and the fact that no voucher specimens exist for C. r. var. robusta in this unit, we believe that there is not enough evidence to verify that a population of C. r. var. robusta occurs at this location (P. Cylinder, pers comm. 2001; R. Morgan, pers. comm. 2001). Therefore, because this unconfirmed location is outside the known range of the species and no historical collections have ever been made from this site, the proposed critical habitat, Unit G, was removed from the critical habitat designation. The acreage of this unit in the proposed rule was 325 ha (805 ac). Further calculations indicate that the elimination of the unit decreases the designation of critical habitat by 328 ha (811 ac) due to a revision in our calculations.

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

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

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

Section 4 requires that we designate critical habitat for a species, to the extent such habitat is determinable, at the time of listing. When we designate critical habitat at the time of listing or under short court-ordered deadlines, we may not have sufficient information to identify all areas essential for the conservation of the species. Nevertheless, we are required to designate those areas we know to be critical habitat, using the best information available to us.

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

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

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

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

As required by the Act and regulations (section 4(b)(2) and 50 CFR 424.12) we used the best scientific information available to determine areas that contain the physical and biological features that are essential for the conservation of Chorizanthe robusta var. robusta. This included information from CNDDB (2000), soil survey maps (Soil Conservation Service 1980), recent biological surveys and reports, additional information provided by interested parties, and discussions with botanical experts. We also conducted site visits at four of the known locations (Pogonip, Freedom, Buena Vista, and Sunset State Beach).

We also reviewed the goals for the delisting of Chorizanthe robusta var. robusta included in our draft recovery plan (Service 2000). The criteria for delisting C. r. var. robusta include: (1) The permanent protection of a minimum of 10 spineflower populations through establishment of new populations or the discovery of other new or historic populations; (2) with each population maintaining a minimum of 1,000 individuals for a period of 10 years that includes a normal rainfall cycle; and (3) the development and implementation of management plans for all sites on park lands and private lands.

The draft plan calls for the following recovery actions: (1) Protect habitat for Chorizanthe robusta var. robusta by working with local lead agencies; (2) manage habitat as needed at all locations that support extant populations; (3) conduct research that will contribute to developing appropriate management actions, including regular monitoring for population trends and potential threats; (4) establish new populations in appropriate habitat within the historic range of the species; and (5) increase public awareness of the species and its associated habitats through various outreach efforts. At the time the recovery plan was prepared, we were aware of only four populations; at the current time, we are aware of eight populations. Because the criteria for delisting C. r. var. robusta include the permanent protection of a minimum of 10 sites, we believe protection of all eight known sites is necessary for the long-term persistence of the species.

All of the critical habitat units are occupied by either above-ground plants or seed banks. In addition, each of the units probably contains areas that are considered currently unoccupied by the species. “Occupied” is defined here as an any area with above-ground C. r. var. robusta plants or a C. r. var. robusta seed bank of indefinite boundary. Current surveys need not have identified above-ground individuals for the area to be considered occupied because plants may still exist at the site as part of the seed bank (Given 1994). All occupied sites contain some or all of the primary constituent elements and are essential to the conservation of the species, as described below. “Unoccupied” is defined here as an area that contains no above-ground C. r. var. robusta plants and is unlikely to contain currently viable seeds.

Determining the specific areas that this taxon occupies is difficult for several reasons: (1) The distribution of C. r. var. robusta appears to be more closely tied to the presence of sandy soils than to specific plant communities; the plant communities may undergo changes over time which, due to the degree of cover that is provided by that vegetation type, may or may not favor the growth of C. r. var. robusta above-ground; (2) the method in which the current distribution of C. r. var. robusta is mapped can be variable, depending on the scale at which patches of individuals are recorded ( e.g. many small patches versus one large patch); and (3) depending on the climate and other annual variations in habitat conditions, the extent of the distributions may either shrink and temporarily disappear, or, if there is a residual seed bank present, enlarge and cover a more extensive area. Because it is logistically difficult to determine how extensive the seed bank is at any particular site and because above-ground plants may or may not be present in all patches within a site every year, we cannot quantify in a meaningful way what proportion of each critical habitat unit may actually be occupied by C. r. var. robusta. Therefore, patches of unoccupied habitat are interspersed with patches of occupied habitat; the inclusion of unoccupied habitat in our critical habitat units reflects the dynamic nature of the habitat and the life history characteristics of this taxon. Both occupied and unoccupied areas that are designated as critical habitat are essential to the conservation of the species. Unoccupied areas provide areas into which populations might expand, provide connectivity or linkage between colonies within a unit, and support populations of pollinators and seed dispersal organisms.

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

Much of what is known about the specific physical and biological requirements of Chorizanthe robusta var. robusta is described in the Background section of this final rule. Based on the best available information at this time, the primary constituent elements of critical habitat for C. r. var. robusta are:

(1) Sandy soils associated with active coastal dunes and inland sites with sandy soils;

(2) Plant communities that support associated species, including coastal dune, coastal scrub, grassland, maritime chaparral, and oak woodland communities, and have a structure such that there are openings between the dominant elements ( e.g. scrub, shrub, oak trees, clumps of herbaceous vegetation);

(3) Plant communities that contain little or no cover by nonnative species which would complete for resources available for growth and reproduction of Chorizanthe robusta var. robusta; and

(4) Physical processes, such as occasional soil disturbance, that support natural dune dynamics along coastal areas.

We selected critical habitat areas to provide for the conservation of Chorizanthe robusta var. robusta, at the single confirmed coastal site and five inland sites where it was known to occur at the time the proposal was prepared. A second coastal site, on the lands formerly known as Fort Ord, was proposed, but is not being designated as critical habitat because the identity of the plants at the location has recently come into question. Historic locations for which there are no recent records of occupancy (within the last 25 years) were not proposed for designation. At a number of these sites, including Alameda in Alameda County, Colma in San Mateo County, and Los Gatos and San Jose in Santa Clara County, the plant has not been seen for approximately 100 years; this, combined with the consideration that these locations have been urbanized, leads us to conclude that a critical habitat designation would be inappropriate for these sites.

Additional areas where Chorizanthe robusta var. robusta has been documented include one at Manresa State Beach, just seaward from the community of La Selva Beach in Santa Cruz County. Chorizanthe robusta var. robusta was observed near the entrance to the Beach in 1979, but it has not been seen since then and may be extirpated (CNDDB 2000).

Another population of Chorizanthe was known from the south end of the Manresa State Beach on a bluff top location, but it had been mistakenly identified as Chorizanthe pungens var. pungens (Monterey spineflower). The correct identity of the population was not determined until preparation of the final critical habitat designation was underway (C. Rutherford, in litt., 2001). Another population is located south of Empire Grade and north of Wilder Ranch State Park on private land and contains approximately 1,000 individuals (G. Hayes, in litt., 2001). In addition, Pajaro Valley Unified School District lands contain Chorizanthe robusta var. robusta colonies adjacent to Unit D, and associated with the colonies that are included within this unit. These three areas were brought to our attention after the proposed critical habitat designation had been published.

Under the Act and the Administrative Procedure Act (5 U.S.C. 702 and 706), we are required to allow the public an opportunity to comment on the proposed rulemaking. Therefore, because these sites were not included in the proposed rule, we are not including them in the final rule.

It is important to note that lands that support these populations do not appear to be threatened by actions that may negatively affect the species or its habitat. Because these areas are occupied by Chorizanthe robusta var. robusta, any actions in which there is a Federal nexus and that may affect the species will require consultation under section 7 of the Act.

Another area where Chorizanthe robusta var. robusta has been documented within the last 25 years is an area north of the community of Soquel in Santa Cruz County, and bounded by Paul Sweet Road to the west, Rodeo Gulch Road to the east, and as far north as Mountain View Road. Collections from this area were made in 1936, 1960, and 1977; although this area has undergone some scattered development, much of the area remains rural, and populations of C. r. var. robusta may persist in this area. However, due to the size of this area and our lack of information needed to delineate boundaries more specifically, we were not able to propose critical habitat in this area.

We do not believe this critical habitat designation alone will be sufficient to conserve Chorizanthe robusta var. robusta, a species in danger of extinction due to the highly restricted range in which the species is known to occur. The draft recovery plan for C. r. var. robusta (Service 2000) proposes as a recovery task “the reestablishment of populations within the historic range of the species if appropriate habitat can be located.” The task of locating appropriate habitat, which would entail developing a predictive model based on habitat characteristics (similar to, but more detailed than, the constituent elements described in this final rule), followed by field surveys and coordination with other agencies, has not yet been initiated. Once these data have been gathered and the recovery plan is finalized, we may revisit critical habitat designation for this species, if appropriate.

The long-term conservation of Chorizanthe robusta var. robusta is dependent to a great extent upon the protection of existing population sites and on maintaining ecological functions within these sites, including connectivity between sites within close geographic proximity to facilitate pollinator activity and seed dispersal mechanisms, and the ability to maintain disturbance factors (for example dune dynamics at the coastal sites, and fire disturbance at inland sites) that maintain the openness of vegetation cover upon which the species depends. The areas we are designating as critical habitat provide some or all of the habitat components essential for the conservation of C. r. var. robusta.

Special management considerations or protections may be needed to maintain the primary constituent elements for Chorizanthe robusta var. robusta within the units being designated as critical habitat. In some cases, protection of existing habitat and current ecological processes may be sufficient to ensure that populations of C. r. var. robusta are maintained, and have the ability to reproduce and disperse into surrounding habitat at those sites. In other cases, however, active management may be needed to maintain the primary constituent elements for C. r. var. robusta. We have outlined below the most likely kinds of special management and protection that C. r. var. robusta may require.

(1) In near-coastal areas, the supply and movement of sand along the coast must be maintained to create the dynamic dune habitats that are needed for Chorizanthe robusta var. robusta.

(2) In more interior locations, the sandy soils on which Chorizanthe robusta var. robusta is found should be maintained to optimize conditions for the species. Physical properties of the soil, such as its chemical composition, salinity, and drainage capabilities would best be maintained by limiting or restricting the use of herbicides, fertilizers, or other soil amendments.

(3) The associated plant communities must be maintained to ensure that the habitat needs of pollinators and dispersal agents are maintained. The use of pesticides should be limited or restricted so that viable populations of pollinators are present to facilitate reproduction of Chorizanthe robusta var. robusta. Fragmentation of habitat through construction of roads and certain types of fencing should be limited so that seed dispersal agents may move seed of C. r. var. robusta throughout the unit.

(4) In some plant communities, it may be important to maintain a mosaic of different-aged stands of coastal scrub or maritime chaparral patches so that openings that support Chorizanthe robusta var. robusta will be maintained. Depending on location, the use of prescribed fire, thinning, or other forms of vegetation management may be useful in creating and maintaining this type of mosaic.

(5) In all plant communities where Chorizanthe robusta var. robusta occurs, invasive, non-native species such as harding grass ( Phalaris aquaticus ), veldt grass ( Ehrharta spp.), European beachgrass, iceplant, and other species need to be actively managed to maintain the open habitat that C. r. var. robusta needs.

(6) Certain areas where Chorizanthe robusta var. robusta occurs may need to be fenced to protect them from accidental or intentional trampling by humans and livestock. While C. r. var. robusta appears to withstand light to moderate disturbance, heavy disturbance may be detrimental to its persistence. Seasonal exclusions may work in certain areas to protect C. r. var. robusta during its critical season of growth and reproduction.

We believe it is important to preserve all areas that currently support native populations of C. r. var. robusta because the number of populations that have been extirpated and the reduction in range that the species has undergone place a great importance on the conservation of all the known remaining sites. We are designating critical habitat at six of the eight known locations of C. r. var. robusta. We are not designating the other two known sites and a potential expansion of the Aptos Unit as critical habitat for reasons described above in the Site Selection section. When possible, areas that were in close geographic proximity were included in the same unit to emphasize the need to maintain connectivity between different populations or colonies. We also included habitat for C. r. var. robusta adjacent to and contiguous to areas of known occurrences to maintain landscape scale processes, such as maintaining normal rates of surface and subsurface water flow, normal rates of erosion, maintaining the composition and structure of the plant community, and maintaining wildlife/plant interactions. Each unit contains habitat that is occupied by C. r. var. robusta.

The proposed designated critical habitat units were delineated by creating data layers in a geographic information system (GIS) format of the areas of known occurrences of Chorizanthe robusta var. robusta, using information from CNDDB (2000), recent biological surveys and reports, our draft recovery plan for this species, and discussions with botanical experts. These data layers were created on a base of USGS 7.5′ quadrangle maps obtained from the State of California's Stephen P. Teale Data Center. We defined the boundaries for the designated critical habitat units using a combination of: (1) Public Land Survey (PLS) coordinates of township, range, and section; (2) known landmarks and roads; and (3) a protracted PLS grid system used to infill grid coordinates within Spanish land grant areas where actual PLS does not exist. During preparation of the final rule, we found several discrepancies between the legal description of the boundaries of the critical habitat units and the boundaries of the units as depicted in the maps accompanying the proposed rule. The discrepancies resulted primarily from our use of data layers created at a small scale ( e.g., 1:100,000 scale USGS mapping) during preparation of the maps of proposed critical habitat. For the final rule, the mapped boundaries of critical habitat first were corrected to be consistent with the boundaries as described in the proposed rule. We then modified the boundaries of proposed critical habitat using information on the location of existing developed areas from recent aerial imagery (April 2000), additional information from botanical experts, and comments on the proposed rule. The boundaries of the final critical habitat units are defined by UTMs.

In selecting areas of designated critical habitat, we made an effort to avoid developed areas, such as housing developments, that are unlikely to contribute to the conservation of Chorizanthe robusta var. robusta. However, we did not map critical habitat in sufficient detail to exclude all developed areas, or other lands unlikely to contain the primary constituent elements essential for the conservation of C. r. var. robusta. Areas within the boundaries of the mapped units, such as buildings, roads, parking lots, and other paved areas, lawns, and other urban landscaped areas will not contain one or more of the primary constituent elements. Federal actions limited to these areas, therefore would not trigger a section 7 consultation, unless they affect the species and/or primary constituent elements in adjacent critical habitat.

The critical habitat areas described below constitute our best assessment at this time of the areas needed for the conservation and recovery of Chorizanthe robusta var. robusta. Critical habitat being designated for C. r. var. robusta includes six units that currently sustain the species. The areas being designated as critical habitat are either along the coast (Sunset State Beach), or are at inland sites ranging from Pogonip Park southeast to the Buena Vista property in southern Santa Cruz County, and include the appropriate dune, scrub, maritime chaparral, or oak woodland habitat that include the sandy openings which support C. r. var. robusta.

A brief description of each critical habitat unit is given below:

Unit A consists of sandy openings within mixed forest habitat within Pogonip Park in the City of Santa Cruz. Of the 64 ha (159 acre) unit, 62 ha (152 ac) are owned and managed by the City; and the remainder are privately owned. As of the year 2000, two colonies comprising approximately 800 individuals occupied this site. This unit is important to the conservation of the taxon because it supports extant colonies of Chorizanthe robusta var. robusta. This unit also includes habitat that is important for the expansion of existing colonies and connectivity between the two colonies. In addition, it is also important because, aside from the Wilder Creek location which we were not aware of at the time of the proposed rule, Pogonip Park is the most northerly and westerly location known for the species. It is also one of only three known locations where C. r. var. robusta is found more than 5 km (3 mi) away from the beach. Preserving the genetic characteristics that have allowed individuals at this site to survive under these slightly different environmental conditions may be important for the long-term survival and conservation of C. r. var. robusta.

Unit B consists of an old field/grassland unit within the city limits of Santa Cruz. The 4-ha (9-ac) unit is privately owned. As of the year 2001, this unit supported a Chorizanthe robusta var. robusta population of approximately 500 individuals. This unit also includes habitat that is important for the expansion of the existing population. This unit is important to the conservation of the species because it contains one of the only eight known locations of C. r. var. robusta. It is the only other unit in close proximity to Unit A.

Unit C consists of sandy openings within maritime chaparral. The 28 ha (70 ac) unit is comprised entirely of private lands. As of the year 2000, this unit supported a Chorizanthe robusta var. robusta population of approximately 3,000 individuals. This unit also includes habitat that is important for the expansion of the existing population. It is also one of only three locations that supports C. r. var. robusta more than 5 km (3 mi) away from the beach. Preserving the genetic characteristics that have allowed individuals at this site to survive under these slightly different environmental conditions (i.e., more inland conditions) may be important for the long-term survival and conservation of C. r. var. robusta.

Unit D consists of grasslands and sandy areas in openings within maritime chaparral and oak woodland. This 4 ha (9 ac) unit is comprised of private and Pajaro Unified School District lands. As of the year 2001, this unit supports a Chorizanthe robusta var. robusta colony of several hundred individuals. Additionally, other colonies of C. r. var. robusta occur within a few hundred yards of the first colony; these additional colonies are outside the critical habitat boundary. This unit is important to the conservation of the taxon because it supports one of only eight known extant locations of C. r. var. robusta. This unit also includes habitat that is important for the expansion of the existing colony and connectivity between the two colonies.

Unit E consists of grasslands within maritime chaparral and oak woodland on the Buena Vista parcel. The 55 ha (135 ac) unit is comprised entirely of private lands. As of 1999, this unit supports multiple colonies of Chorizanthe robusta var. robusta comprising approximately 1,500 individuals. This unit is important to the conservation of the species because it is one of only two units that supports multiple extant colonies of C. r. var. robusta. This unit also includes habitat that is important for the expansion of the existing colonies, and connectivity between the multiple colonies.

Unit F consists of coastal dune habitat, and is identical to critical habitat that is being designated for the Chorizanthe pungens var. pungens. All of this 35 ha (86 ac) unit is within Sunset State Beach. As of 2001, this unit supports the largest concentration of C. r. var. robusta, including dozens of colonies of comprising tens of thousands of individuals. This unit is important to the conservation of the species because it is only one of two units that supports multiple extant colonies of C. r. var. robusta. This unit also includes habitat that is important for the expansion of these existing colonies into areas that were historically occupied, and for maintaining connectivity between the multiple colonies. The unit is also important because it is the most southerly location known for the species and the only location, aside from Manresa State Beach which was not proposed for critical habitat, where C. r. var. robusta is found so close to the beach. Preserving the genetic characteristics that have allowed individuals at this site to survive under these slightly different environmental conditions ( i.e., more coastal conditions) may be important for the long-term survival and conservation of C. r. var. robusta.

Lands designated as critical habitat are under private, city, and State jurisdiction. The approximate areas of designated critical habitat by land ownership are shown in Table 1.