The interim final regulations that are the subject of this correction revised § 917.459, but inadvertently omitted paragraph (a)(6)(iii).

The interim final rule as published omits revised § 917.459, paragraph (a)(6)(iii) which exempts Peento (Donut) varieties of peaches from the weight-count standards applicable to other round varieties of peaches. The additional language is needed to ensure that newly-developed and approved weight-count standards for volume-filled containers of Peento (Donut) varieties of peaches are the sole basis for the weight-count sampling of Peento varieties of peaches.

Accordingly, in FR Doc. 02-8140, published April 5, 2002 (67 FR 16286) make the following corrections.

1. On page 16296, third column, add instruction “E” immediately following instruction “D” as stated below.

E. Paragraph (a)(6)(iii) is revised as follows.

2. On page 16298, first column, after the 5 asterisks following § 917.459 paragraph (a)(6) introductory text, paragraph (a)(6)(iii) is added to read as follows:

(iii) Such peaches in any container when packed other than as specified in paragraphs (a)(6)(i) and (ii) of this section are of a size that a 16-pound sample, representative of the peaches in the package or container, contains not more than 64 peaches, or if the peaches are “well matured,” not more than 73 peaches, except for Peento (Donut) varieties of peaches.

The FAA has received reports from Raytheon that indicate during maintenance on one of the affected airplanes, it was discovered that the airflow paths of the anti-ice system between the outer skin and inner leading edge skin of the wing were obstructed. The obstruction is caused by sealant that is applied to the wing leading edge during manufacture. This condition has been found on six other affected airplanes. Obstruction of the airflow paths prevents the hot air from the anti-ice system from properly distributing heat on the wing leading edge. Heat is necessary on the wing leading edge to prevent leading edge ice formation or runback ice.

This condition, if not corrected, could result in ice formation on the wing leading edges and the upper and lower wing surfaces during flight in icing conditions. Ice formation on the wings could cause symmetric or asymmetric loss of lift, degradation of handling qualities, and increased drag of the airplane.

The FAA has determined that long-term continued operational safety would be better assured by design changes that remove the source of the problem rather than by temporary changes to the AFM or other special procedures. With this in mind, we will continue to work with Raytheon in collecting information to determine whether a future design change may be necessary.

The FAA has reviewed all available information and determined that:

This AD requires you to insert a temporary change into the FAA-approved AFM that adds a limitation for prohibiting flight into icing conditions and adds procedures for when an icing condition occurs.

In preparation of this rule, we contacted type clubs and aircraft operators to obtain technical information and information on operational and economic impacts. We did not receive any information through these contacts. If received, we would have included, in the rulemaking docket, a discussion of any information that may have influenced this action.

Because the unsafe condition described in this document could result in ice formation on the wings, we find that notice and opportunity for public prior comment are impracticable. Therefore, good cause exists for making this amendment effective in less than 30 days.

Although this action is in the form of a final rule and was not preceded by notice and opportunity for public comment, FAA invites your comments on the rule. You may submit whatever written data, views, or arguments you choose. You need to include the rule's docket number and submit your comments to the address specified under the caption ADDRESSES. We will consider all comments received on or before the closing date specified above. We may amend this rule in light of comments received. Factual information that supports your ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether we need to take additional rulemaking action.

We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. You may view all comments we receive before and after the closing date of the rule in the Rules Docket. We will file a report in the Rules Docket that summarizes each FAA contact with the public that concerns the substantive parts of this AD.

If you want us to acknowledge the receipt of your mailed comments, you must include a self-addressed, stamped postcard. On the postcard, write “Comments to Docket No. 2002-CE-19-AD.” We will date stamp and mail the postcard back to you.

The compliance time of this AD is “within the next 15 calendar days after the effective date of this AD.”

Although ice formation on the wings is only unsafe during flight, this unsafe condition is not a result of the number of times the airplane is operated. The chance of this situation occurring is the same for an airplane with 10 hours time-in-service (TIS) as it would be for an airplane with 500 hours TIS. For this reason, the FAA has determined that a compliance based on calendar time should be utilized in this AD in order to assure that the unsafe condition is addressed on all airplanes in a reasonable time period.

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

We have 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 (otherwise, an evaluation is not required). A copy of it, if filed, may be obtained from the Rules Docket.

Federal Register Document 02-7858 published on Tuesday, April 2, 2002 (67 FR 15478), modified Class D and Class E Airspace at Rockford, IL. The latitude and longitude was omitted for the Greater Rockford ILS localizer in the Class E legal description. In addition, runway 36 was referred to in the Class D legal description, instead of runway 1. This action corrects these errors, by adding the missing latitude and longitude, and changing the runway identifier.

Accordingly, pursuant to the authority delegated to me, the errors for the Class D and Class E Airspace, Rockford, IL, as published in the Federal Register Tuesday, April 2, 2002 (67 FR 15478), (FR Doc. 02-7858), are corrected as follows:

The CFTC today announced an amendment to its rules governing investigations, and in particular, subpoenas. The Commission is authorized to promulgate this rule under sections 2a(11) and 8a(5), of the Commodity Exchange Act. 1

The amendment to Rule 11.4, 2 adding paragraph (e), authorizes the Director of Division of Enforcement, with the concurrence of the General Counsel or General Counsel's delegee, to institute subpoena enforcement proceedings in federal court to seek an order compelling individuals or entities to comply with Commission subpoenas. This delegation will expedite the investigation process and conserve Commission resources by enabling the Division more expeditiously to seek to compel compliance with Commission subpoenas in cases where the entry of a court order is necessary. Notwithstanding this delegation of authority, in instances where potential subpoena enforcement actions raise any novel or complex issues, the Division may consult with the Commission before the action is filed in federal court.

The Commission has determined that this amendment relates solely to agency organization, procedure and practice and does not relate to a substantive rule. Therefore, the provisions of the Administrative Procedure Act, 5 U.S.C. 553, which generally require notice of proposed rulemaking and opportunity for public participation, are not applicable. The Commission further finds that there is good cause to make this rule effective immediately upon publication in the Federal Register because it will expedite the investigation process and conserve Commission resources.

Section 15 of the Commodity Exchange Act requires the Commission to consider the costs and benefits of its action as well as the public interest to be protected by the antitrust laws before adopting a rule or regulation under the Act. Because the amendments to part 140 relate solely to agency organization, procedure and practice, they do not directly implicate the specific areas of concern identified in Section 15. In any event, the Commission has considered the costs and benefits of this amendment and has concluded that the rule is fully consistent with the public interest and with the requirements and prohibitions of the Commodity Exchange Act, as amended, 7 U.S.C. 4a(f) and (j), 12a(5) and 13.

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq. , requires that agencies, in proposing rules in accordance with 5 U.S.C. 553, consider the impact of those rules on small businesses. The Commission has determined that the provisions of the RFA do not apply to the promulgation of this regulation since it relates solely agency organization, procedure and practice.

The Paperwork Reduction Act of 1995 (RPA), 4 U.S.C. 3501 et seq. , which imposes certain requirements on federal agencies, including the Commission, in connection with their conducting or sponsoring any collection of information as defined by the RPA, does not apply to these rules. This rule amendment does not contain information collection requirements as defined by the RPA.

Throughout this document wherever “we,” “us,” or “our” are used we mean EPA.

EPA is approving section 9 of the Illinois Environmental Protection Act (as revised by Public Act 89-491) as a revision to the Illinois SIP. The revised Illinois Environmental Protection Act exempts rural grain elevators from particulate matter control requirements contained in section 212.462 of Title 35 of the Illinois Administrative Code (35 IAC 212.462).

The exemption applies to “any grain elevator located outside of a major population area” provided that the elevator:

1. does not violate the pollution prohibition in subsection (a) of section 9 of the Illinois Environmental Protection Act or have a certified investigation on file with the Illinois EPA; and,

2. Is not required to obtain a Clean Air Act Permit Program permit.

“Major population areas” are defined at 35 IAC 211.3610. Generally, major population areas include Cook, Lake, DuPage, and Will Counties; portions of McHenry, Kane, and St. Clair Counties; as well as the municipalities of Kankakee, Rockford, Moline, Galesburg, Peoria, Pekin, Bloomington/Normal, Champaign/Urbana, Decatur, Springfield, and surrounding areas.

Subsection (a) of section 9 of the Illinois Environmental Protection Act states “No person shall cause or threaten or allow the discharge or emission of any contaminant into the environment in any State so as to cause or tend to cause air pollution in Illinois, either alone or in combination with contaminants from other sources, or so as to violate regulations or standards adopted by the [Illinois Pollution Control Board] under this Act.”

A “certified investigation” means “a report signed by Illinois Environmental Protection Agency personnel certifying whether a grain-handling operation (or portion thereof) or grain-drying operation is causing or tending to cause air pollution.”

A Clean Air Act Permit Program permit is a permit required under section 39.5 of the Illinois Environmental Protection Act. For sources of particulate matter pollution, such as grain elevators, sources with a potential to emit over 100 tons of PM10 per year are required to obtain permits under this program.

The revised Illinois Environmental Protection Act exempts rural grain elevators from particulate matter control requirements contained in 35 IAC 212.462. The requirements in 35 IAC 212.462 are applicable only to operations with a total annual grain throughput of 300,000 bushels or more. 35 IAC 212.462 requires sources to apply for a permit subject to 35 IAC 201. 35 IAC 212.462 also requires, among other requirements, control equipment with 90% particulate removal efficiency on cleaning and separating operations, major dump-pit areas, internal transferring areas, and watercraft loadout areas. 35 IAC 212.462 requires truck and hopper car loading to use socks, sleeves or choke loading, and for box car loading emissions to be controlled “to the fullest extent which is technically and economically feasible”.

Illinois grain elevators exempted from the requirements of 35 IAC 212.462 continue to be regulated by 35 IAC 212.461 which includes housekeeping requirements such as maintenance and operation of existing control equipment, and requirements for cleaning and maintenance of areas such as floors, roofs, and property. No visible emissions are allowed from the head house.

Grain drying operations continue to be regulated by 35 IAC 212.463, which contains specific requirements for different types of grain dryers.

Sources exempted from 35 IAC 212.462 are also subject to the opacity limits of 35 IAC 212.123, which limit opacity of emissions to 30%, generally. 60% opacity is allowed for up to 8 minutes per hour, on no more than 3 occasions in any 24-hour period.

Additionally, New Source Performance Standards (Title 40 Code of Federal Regulations, part 60, subpart DD) apply to grain elevators constructed or modified after August 3, 1978. These Federal regulations, generally, contain limits on grain loading/unloading, grain drying, and material handling operations at grain elevators with a permanent storage capacity of more than 2.5 million bushels.

Section 110(l) of the Clean Air Act (Act) states that EPA shall not approve a requested SIP revision if the revision would interfere with any applicable requirement of the Act. While the requested SIP revision does not apply to any PM10 “nonattainment areas”, it is a relaxation of the current SIP. Therefore, to satisfy section 110(l) of the Act, an air quality modeling analysis was conducted to determine whether the requested SIP revision would cause or contribute to violations of PM10 National Ambient Air Quality Standards (NAAQS). Illinois submitted a modeling analysis, and the EPA conducted further analyses to confirm the State's results. The modeling analyses considered a representative rural grain elevator with a throughput of 2.5 million bushels per year, using conservative emissions estimates, and including estimates of background PM10 concentrations. The analysis showed that the requested SIP revision will not cause or contribute to violations of the PM10 NAAQS. The NAAQS for PM10 are 150 and 50 micrograms per cubic meter (μg/m 3 ) for the 24-hour and annual standards, respectively. The final modeling analysis results showed an expected 24-hour (highest sixth-high plus background) concentration of 129 μg/m 3 and an expected annual-average concentration 41 ug/m 3 . For a detailed discussion, see the Technical Support Document dated April 23, 2002.

EPA thus concludes that this submittal will not interfere with attainment or any other Act requirement. Therefore, EPA is approving the requested SIP revision.

As discussed above, while this submittal allows somewhat more emissions in rural areas than was previously allowed, air quality modeling analysis shows that approval of this requested SIP revision will not result in violations of the PM10 NAAQS. (For more information see the Technical Support Document dated April 23, 2002.)

We are approving, through direct final rulemaking, revisions to particulate matter control requirements for rural grain elevators in Illinois. We are publishing this action without prior proposal because we view this as a noncontroversial revision and anticipate no adverse comments. However, in a separate document in this Federal Register publication, we are proposing to approve the SIP revision in case adverse written comments are filed. This action will be effective without further notice unless we receive relevant adverse written comment by June 28, 2002. Should we receive such comments, we will publish a final rule informing the public that this action will not take effect. Any parties interested in commenting on this action should do so at this time. If no such comments are received, this action will be effective on July 29, 2002.

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 . 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).

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 may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This section provides additional information by addressing the following questions:

What is a SIP?

What is the Federal Approval Process for a SIP?

What does Federal Approval of a State Regulation Mean to Me?

What is the Part 70 Operating Permit Program?

What is Being Addressed in This Action?

Have the Requirements for Approval of a SIP Revision and Part 70 Program Revision Been Met?

What Action is EPA Taking?

Section 110 of the Clean Air Act (CAA) requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards established by EPA. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.

Each state must submit these regulations and control strategies to us for approval and incorporation into the Federally-enforceable SIP.

Each Federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.

In order for state regulations to be incorporated into the Federally-enforceable SIP, states must formally adopt the regulations and control strategies consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.

Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.

All state regulations and supporting information approved by EPA under section 110 of the CAA are incorporated into the Federally-approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at Title 40, part 52, entitled “Approval and Promulgation of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that we have approved a given state regulation with a specific effective date.

Enforcement of the state regulation before and after it is incorporated into the Federally-approved SIP is primarily a state responsibility. However, after the regulation is Federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in section 304 of the CAA.

The CAA Amendments of 1990 require all states to develop an operating permit program that meets certain Federal criteria listed in 40 CFR part 70. In implementing this program, the states are to require certain sources of air pollution to obtain permits that contain all applicable requirements under the CAA. One purpose of the part 70 operating permit program is to improve enforcement by issuing each source a single permit that consolidates all of the applicable CAA requirements into a Federally-enforceable document. By consolidating all of the applicable requirements for a facility into one document, the source, the public, and the permitting authorities can more easily determine what CAA requirements apply and how compliance with those requirements is determined.

Sources required to obtain an operating permit under this program include “major” sources of air pollution and certain other sources specified in the CAA or in our implementing regulations. For example, all sources regulated under the acid rain program, regardless of size, must obtain permits. Examples of major sources include those that emit 100 tons per year or more of volatile organic compounds, carbon monoxide, lead, sulfur dioxide, nitrogen dioxide, or particulate matter less than 10 micrometers in size (PM 10 ); those that emit 10 tons per year of any single hazardous air pollutant (HAP) (Specifically listed under the CAA); or those that emit 25 tons per year or more of a combination of HAPs.

Revisions to the state and local agencies' operating permit program are subject to public notice, comment, and our approval. Because the state's operating permit rules are approved pursuant to both part 70 and section 112(l), some of the revised rules are also approved pursuant to section 112(l).

The Nebraska Department of Environmental Quality (NDEQ) has adopted changes to its Title 129— Nebraska Air Quality Regulations and has requested that EPA approve these changes as a revision to the Nebraska SIP.

Nebraska has also asked that changes also be approved as revisions to the Title V Operating Permit Program, and § 112(l) Air Toxics Program. The changes to Title 129 were approved by the Nebraska Environmental Quality Council at its September 4, 1998, and March 23, 2000, hearings, with effective dates of December 15, 1998, and August 22, 2000, respectively. Also, on January 23, 2002, NDEQ sent EPA a letter which provided further explanation regarding a modification made to section 014 of Chapter 17, “Construction Permits—When Required.”

The following is a description of the changes to Nebraska's Title 129:

1. Applicable Requirement Definition. The definition of applicable requirement in Chapter 1, 014.04 was revised to reference Chapter 23 emission standards for Hazardous Air Pollutants (HAPs) in addition to the already existing reference to Chapters 27 and 28.

2. Updates to Reference-type Materials. The version of the SIC Code Manual cited in Chapter 1, 018 was updated to 1987.

3. Volatile Organic Compound (VOC) Exemption Update. Chapter 1, 109 was revised to add 16 additional compounds to the list of organic compounds which have been determined to have negligible reactivity.

4. Transferral of Stack Height Rules. Four definitions from Chapter 1 related to Stack Height Good Engineering Practice (032, 040, 049, and 061) were transferred to new regulations added to Chapter 16 (new 004, 005, 006, 007, 008). These rules have previously been approved by EPA.

5. Significance Levels for Landfills. In Chapter 1, 094, a trigger level for “Municipal solid waste landfill emissions” was added to the definition of “significant” in Chapter 1.

6. Requirements for Permit Compliance Certification. Chapter 7, 006.02I4 was revised to replace “enhanced monitoring” with “compliance assurance or periodic monitoring” consistent with terminology used in corresponding regulations.

7. Annual Certification of Risk Management Plans. Chapter 8, 011.02 was revised to correct a typographical error in a citation, from Chapter 7, 002 to Chapter 7, 006.02I3.

8. Compliance with Terms of Construction Permit. Chapter 17, 002.01 was added to reinforce that permit non-compliance is not allowed.

9. Modification of a Construction Permit. Chapter 17, 014 was added to allow for modification of construction permits without public notice procedures under tightly limited circumstances. The revision allows the Director the means to address construction permit provisions which in hindsight could or should have been written differently, without undergoing a full permit revision process where there is no environmental impact. On January 23, 2002, NDEQ sent EPA a letter which responded to EPA's concerns that this change not allow sources to modify an existing construction permit which would allow significant emissions of a pollutant not previously emitted or which should require a new Best Available Control Technology (BACT) analysis. The NDEQ's letter explains its process for review of requests for changes under this section and for assuring that only modifications meeting the criteria of the rule are approved under this process.

10. Update to CFR Citation . The CFR citation in Chapter 19, 001 was updated to July 1, 1997, which, among other things, updates the definition of “significant” to include a trigger level for municipal solid waste landfill emissions.

11. Opacity of Particulate Emissions . Chapter 20, 005 was revised to allow for evaluation of opacity using an EPA-approved method other than Method 9 in Appendix A of 40 CFR part 60, as long as the alternate method is agreed upon by NDEQ and EPA.

12. Compliance Assurance Monitoring . Chapter 31, 001 was revised to adopt by reference the Federal compliance assurance monitoring (CAM) rule as found at 40 CFR part 64, effective July 1, 1999. Previously, EPA had not approved Chapter 31 as part of NDEQ's Title V program. Today, EPA is adding the chapter to the list of those chapters of Title 129 which are approved as part of Nebraska's Title V Operating Permit Program.

13. Emission Sources, Testing, Monitoring . Chapter 34, 007 was revised to require performance tests “if required” rather than every time a new or modified source becomes operational.

14. Updates to Reference-type Materials . The reference to the Test Methods for Evaluating Solid Waste in Chapter 34, 002.06, was updated to 1997.

15. Location of Federal Documents . Chapter 41, 007 was added to clarify that copies of the substantial Federal documents (Code of Federal Regulations and Federal Register ) adopted by reference are located and available at NDEQ's office.

The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfies the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above and in more detail in the technical support document which is part of this document, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations. Finally, the submittal meets the substantive requirements of Title V of the 1990 CAA Amendments and 40 CFR part 70.

We are processing this action as a direct final action because the revisions make routine changes to the existing rules which are noncontroversial. Therefore, we do not anticipate any adverse comments. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision is 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.

Final Action: EPA is approving as an amendment to the Nebraska SIP regulatory changes to Title 129, Chapters 1, 7, 8, 16, 17, 19, 20, 34 and 41. EPA is also approving as an amendment to the Nebraska Title V operating permit program changes to Title 129 Chapters 1, 7, 8, 31, and 41. Finally, EPA is approving pursuant to section 112(l) revisions to Chapters 7 and 8.

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 preexisting 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 (Pub. L. 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 CAA. 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 CAA. 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 CAA. 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 . 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).

Under section 307(b)(1) of the CAA, 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 may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

This Supplementary Information section is organized as follows:

A. What Action is EPA Taking?

B. Why was This SIP Revision Submitted?

C. Why Can We Approve This Request?

D. What Requirements Must be Met for Approval of a Redesignation, and How Did the State Meet Them?

We are approving the State of Wisconsin's request to redesignate the Rothschild-Rib Mountain-Weston primary and secondary SO 2 nonattainment areas to attainment of the SO 2 NAAQS. We are also approving the maintenance plan for these areas into the Wisconsin SO 2 SIP. Further, we are incorporating the consent orders for Weyerhaeuser Company (AM-01-600) and Wisconsin Public Service Corporation's Weston Plant (AM-01-601) into the Wisconsin SO 2 SIP.

WDNR believes that the Rothschild-Rib Mountain-Weston areas, located in central Marathon County, are now eligible for redesignation because EPA approved Wisconsin's SO 2 SIP in 1990 and 1993, and SO 2 monitors in the nonattainment area of Marathon County have not recorded exceedances of either the primary or secondary SO 2 air quality standards since 1986.

Consistent with the Act's requirements, EPA developed procedures for redesignation of nonattainment areas that are in a September 4, 1992, memorandum from John Calcagni, EPA, titled, Procedures for Processing Requests to Redesignate Areas to Attainment. This EPA guidance document contains a number of conditions that a state must meet before it can request a change in designation for a federally designated nonattainment area. That memorandum and EPA's Technical Support Document set forth the rationale in support of the redesignation of the Rothschild-Rib Mountain-Weston SO 2 nonattainment areas to an attainment status.

There are two components involved in making this demonstration: (1) Ambient air quality monitoring representative of the area of highest concentration must show no more than one exceedance annually; and (2) EPA approved air quality modeling must show that the area in question meets the applicable standard.

The first component relies on ambient air quality data representative of the area of highest concentration. The primary 24-hour concentration limit of the SO 2 NAAQS is 365 micrograms per cubic meter (μg/m 3 ). The secondary 3-hour concentration limit is 1300 μg/m 3 . According to 40 CFR 50.4, an area must show no more than one exceedance annually. WDNR's monitoring data indicates that there have been no exceedances of the primary 24-hour concentration limit or the secondary 3-hour concentration limit during the monitoring period of 1986-1991, therefore satisfying the first component.

The second component relies on supplemental EPA approved air quality modeling. The modeling methodology used by the WDNR followed the guidance identified in EPA's Guideline on Air Quality Models, 40 CFR part 51, appendix W. Five sources were explicitly modeled: Wisconsin Public Service Corporation Weston Plant, Weyerhaeuser Company, Foremost Farms USA, Lignotech USA, Inc., and Mosinee Paper. Weyerhaeuser Paper and Lignotech are located within the Rothschild nonattainment area. Wisconsin Public Service Corporation-Weston and Foremost Farms are located 3 to 4 kilometers to the southwest of the Rothschild area and Mosinee Paper is located about 12 kilometers to the south-southwest of the Rothschild area.

EPA's review of the modeling in the state's November 17, 2000 submittal identified several issues. WDNR's supplemental submittal sent to EPA on October 17, 2001 included revised modeling which adequately addressed those issues. To demonstrate modeled attainment, Weyerhaeuser was limited to burning fuel oil with no more than 0.05% sulfur and Wisconsin Public Service Corporation Weston Plant was limited to burning coal in Units 1 and 2 with no more than 1.2 pounds of SO 2 per million British Thermal Units and to burning fuel oil with no more than 0.3% sulfur in the three turbines. WDNR placed these limits into consent orders which were included in its October 17, 2001 submittal.

The results of the air quality modeling conducted by the WDNR for the Rothschild-Rib Mountain-Weston nonattainment areas show the total SO 2 concentration from the impact of the five modeled sources combined with a representative background SO 2 concentration are below the primary and secondary SO 2 NAAQS. Therefore, WDNR satisfied the second component by supplying a modeling demonstration showing that the area is in attainment of the SO 2 NAAQS.

WDNR submitted multiple SO 2 SIP revisions to EPA between 1985 and 1992 to fulfill the requirements of section 110 and part D of the Act. The Rothschild SO 2 SIP revision approved by EPA on March 27, 1990 (55 FR 11183), contained limits pertaining to two sources, Weyerhaeuser and Reed Lignin Company (now Lignotech). This SIP revision approved Wisconsin's SO 2 plan for the City of Rothschild and the Town of Weston. The emission limits for the Wisconsin Public Service Corporation Weston Plant, the only large SO 2 emitting source located near Rib Mountain, were submitted as part of the Wisconsin statewide SO 2 rule. EPA approved the statewide SO 2 rule on May 21, 1993 (58 FR 29537), thereby approving Wisconsin's SO 2 plan for Rib Mountain Township.

Air quality improvement in the Rothschild-Rib Mountain-Weston SO 2 nonattainment areas is attributed to SO 2 emission limits and operating restrictions imposed on the facilities that contributed to the nonattainment status. These limits have been incorporated into the state SO 2 SIP and are therefore permanent and enforceable. Further, the additional limits relied upon in the modeling were placed into consent orders, which were included in WDNR's October 17, 2001 submittal. These consent orders are being incorporated into the Wisconsin SO 2 SIP, thereby making them permanent and enforceable.

Section 110(a)(2) of the Act contains the general requirements for nonattainment plans. Part D contains the general requirements applicable to all areas that are designated nonattainment based on a violation of the NAAQS. These requirements are satisfied by EPA's March 27, 1990 and May 21, 1993 approvals of the nonattainment plans that Wisconsin submitted for the control of SO 2 emissions in the Rothschild-Rib Mountain-Weston areas.

A PSD program will replace the requirements of the Part D new source review program after redesignation of the area. To ensure that the PSD program will become fully effective immediately upon redesignation, either EPA must delegate the federal PSD program to the state or the state must make any needed modifications to its rules to have the approved PSD program apply to the affected area upon redesignation. EPA fully approved Wisconsin's PSD program, effective June 28, 1999.

Section 107(d)(3)(E) of the Act states that, for an area to be redesignated, EPA must fully approve a maintenance plan that meets the requirements of Section 175A. Section 175A of the Act requires states to submit a SIP revision that provides for the maintenance of the NAAQS in the area for at least 10 years after approval of the redesignation. The basic components needed to ensure proper maintenance of the NAAQS are: attainment inventory, maintenance demonstration, verification of continued attainment, ambient air monitoring network, and a contingency plan. EPA is approving the maintenance plan in today's action as discussed below.

a. Attainment Inventory . The air dispersion modeling included in the state's submittal contains the emission inventory of SO 2 sources in the Rothschild-Rib Mountain-Weston nonattainment areas.

b. Maintenance Demonstration and Verification of Continued Attainment. The modeling analysis submitted by WDNR on October 17, 2001, demonstrates attainment and maintenance of the SO 2 NAAQS. The SO 2 emitting sources involved in the Rothschild-Rib Mountain-Weston SO 2 redesignation are meeting the SO 2 emission limits identified in the modeling. WDNR will track the maintenance plan through the annual submittal of the air emission inventory for the SO 2 emitting facilities in the Rib Mountain-Rothschild-Weston area.

c. Monitoring Network. WDNR ceased air quality monitoring in this area in 1991 due to fiscal considerations. EPA has stated in the past that if a state can show attainment of the NAAQS through EPA approved air dispersion modeling, has an approvable SIP revision showing that the control strategies have been implemented, and shows that it can continue to attain the standard for a period of 10 years following the redesignation, then an SO 2 monitoring network does not need to be maintained. Because the WDNR has met these requirements, it does not need to maintain a monitoring network in the Rothschild-Rib Mountain-Weston area. WDNR, however, has committed to resume monitoring if it appears that there are significant emission increases from the SO 2 emitting sources in the area that would cause a concern for public health.

d. Contingency Plan. Section 175A of the Act requires that the maintenance plan include contingency provisions to promptly correct any violation of the NAAQS that occurs after redesignation of the area. WDNR will resume SO 2 air monitoring if the reported SO 2 emissions from any of the facilities in any one year exceeds the amount identified in the modeling. Once monitoring resumes and upon verification of a violation of either the 24-hour or 3-hour SO 2 NAAQS, if any of the SO 2 emitting sources in the area is responsible for the violation, WDNR will work with one or all of these sources to ensure that the violation will not occur again. WDNR will involve EPA, Region 5, in the discussions with the company. Once WDNR identifies the problem and sets a strategy to fix the problem, WDNR will write rules to control SO 2 emissions at the company or amend the company's federal operation permit. WDNR has committed to the following schedule: (1) To identify the responsible source within 30 days after a monitored violation; (2) to take action against the responsible source within 90 days of the violation; and, if EPA determines it necessary, (3) to submit a SIP revision to EPA within 360 days after the violation.

We have evaluated the state's submittal and have determined that it meets the applicable requirements of the Act, EPA regulations, and EPA policy. Therefore, we are approving the State of Wisconsin's request to redesignate the villages of Rothschild and Weston and the Township of Rib Mountain, all located in central Marathon County, from primary and secondary SO 2 nonattainment areas to attainment of the SO 2 NAAQS. We are also approving the maintenance plan for the Rothschild-Rib Mountain-Weston areas into the Wisconsin SO 2 SIP. Further, we are also incorporating into the Wisconsin SO 2 SIP the consent orders for Weyerhaeuser Company (AM-01-600) and Wisconsin Public Service Corporation's Weston Plant (AM-01-601).

The EPA is publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse comments are filed. This rule will be effective July 29, 2002 without further notice unless we receive relevant adverse comments by June 28, 2002. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. We will then address all public comments received in a subsequent final rule based on the proposed action published elsewhere in this Federal Register . The EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. If we do not receive any comments, this action will be effective July 29, 2002.

Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future implementation plan. Each request for revision to the SIP shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.

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. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding this action under section 801 because this is a rule of particular applicability.

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 may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

You may be affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in the table could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this action might apply to certain entities. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

1. Electronically. You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. To access this document, on the Home Page select “Laws and Regulations,” “Regulations and Proposed Rules,” and then look up the entry for this document under the “ Federal Register ”—Environmental Documents. You can also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/. A frequently updated electronic version of 40 CFR part 180 is available at http://www.access.gpo.gov/nara/cfr/cfrhtml_00/Title_40/40cfr180_00.html, a beta site currently under development.

2. In person . The Agency has established an official record for this action under docket control number OPP-2002-0061. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

EPA issued a final rule, published in the Federal Register of June 30, 1999 (64 FR 35037) (FRL-6086-4), which announced that on its own initiative under section 408 of the FFDCA, 21 U.S.C. 346a, as amended by the FQPA of 1996 (Public Law 104-170), it established a time-limited tolerance for the residues of fludioxonil in or on caneberries at 5 ppm, with an expiration date of December 31, 2000. EPA established the tolerance because section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Such tolerances can be established without providing notice or period for public comment. The tolerance was extended in the Federal Register of December 6, 2000 (65 FR 76169) (FRL-6756-6) until December 31, 2001.

EPA received a request to extend the use of fludioxonil on caneberries for this year's growing season due to the widespread development of pest resistance to previously-used standard fungicides benomyl, iprodione, and vinclozolin; no curently available alternatives appear to provide suitable disease control and significant economic losses are expected with moderate to severe disease pressure. After having reviewed the submission, EPA concurs that emergency conditions exist. EPA has authorized under FIFRA section 18 the use of fludioxonil on caneberries for control of gray mold in Oregon and Washington.

EPA assessed the potential risks presented by residues of fludioxonil in or on caneberries. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and decided that the necessary tolerance under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. The data and other relevant material have been evaluated and discussed in the final rule published in the Federal Register of June 30, 1999 (FR 64 35037) (FRL-6086-4). Based on that data and information considered, the Agency reaffirms that extension of the time-limited tolerance will continue to meet the requirements of section 408(l)(6). Therefore, the time-limited tolerance is extended for an additional 2 year period. EPA will publish a document in the Federal Register to remove the revoked tolerance from the Code of Federal Regulations (CFR). Although this tolerance will expire and is revoked on December 31, 2002, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on caneberries after that date will not be unlawful, provided the pesticide is applied in a manner that was lawful under FIFRA and the application occurred prior to the revocation of the tolerance. EPA will take action to revoke this tolerance earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA of 1996, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) provides essentially the same process for persons to “object” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d), as was provided in the old FFDCA sections 408 and 409. However, the period for filing objections is now 60 days, rather than 30 days.

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-2002-0061 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before July 29, 2002.

1. Filing the request . Your objection must specify the specific provisions in the regulation that you object to, and the grounds for the objections (40 CFR 178.25). If a hearing is requested, the objections must include a statement of the factual issues(s) on which a hearing is requested, the requestor's contentions on such issues, and a summary of any evidence relied upon by the objector (40 CFR 178.27). Information submitted in connection with an objection or hearing request may be claimed confidential by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. A copy of the information that does not contain CBI must be submitted for inclusion in the public record. Information not marked confidential may be disclosed publicly by EPA without prior notice.

Mail your written request to: Office of the Hearing Clerk (1900), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. You may also deliver your request to the Office of the Hearing Clerk in Rm. C400, Waterside Mall, 401 M St., SW., Washington, DC 20460. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 260-4865.

2. Tolerance fee payment . If you file an objection or request a hearing, you must also pay the fee prescribed by 40 CFR 180.33(i) or request a waiver of that fee pursuant to 40 CFR 180.33(m). You must mail the fee to: EPA Headquarters Accounting Operations Branch, Office of Pesticide Programs, P.O. Box 360277M, Pittsburgh, PA 15251. Please identify the fee submission by labeling it “Tolerance Petition Fees.”

EPA is authorized to waive any fee requirement “when in the judgement of the Administrator such a waiver or refund is equitable and not contrary to the purpose of this subsection.” For additional information regarding the waiver of these fees, you may contact James Tompkins by phone at (703) 305-5697, by e-mail at tompkins.jim@epa.gov, or by mailing a request for information to Mr. Tompkins at Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.

If you would like to request a waiver of the tolerance objection fees, you must mail your request for such a waiver to: James Hollins, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.

3. Copies for the Docket. In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit III.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket control number OPP-2002-0061, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).

This final rule re-establishes a time-limited tolerance under FFDCA section 408. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a FIFRA section 18 petition under FFDCA section 408, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on 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, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive order to include regulations that have “substantial 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 final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, 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 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. Thus, Executive Order 13175 does not apply to this rule.

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 this final rule in the Federal Register . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

This is a summary of the Commission's Memorandum Opinion and Order in CC Docket No. 92-297, FCC 01-164, adopted May 22, 2001 and released on May 24, 2001. The complete text of this MO&O is available for inspection and copying during normal business hours in the FCC Reference Center (Room), 445 12th Street, SW Washington, DC 20554, and also may be purchased from the Commission's copy contractor, International Transcription Service, Inc. (ITS, Inc.), 1231 20th Street, NW, Washington, DC 20036, (202) 857-3800.

In the First Report and Order, 61 FR 39425, July 29, 1996 in Docket No. 92-297, the Commission designated two adjacent frequency bands, 29.1-29.25 GHz and 29.25-29.5 GHz, for feeder uplinks for Mobile Satellite Service systems using non-geostationary-orbit satellites ( i.e., “NGSO/MSS” systems). The Commission also designated the 29.1-29.25 GHz band for hub-to-subscriber transmission by Local Multipoint Distribution Service (“LMDS”) systems and the 29.25-29.5 GHz band for uplinks for Fixed Satellite Service systems using geostationary satellites ( i.e., “GSO/FSS” systems).

In a petition for reconsideration of the First Report and Order, Motorola Satellite Communications, Inc. asked for deletion of a rule provision, 47 CFR 25.258(c), that limits eligibility for NGSO/MSS feeder uplink assignments in the 29.25-29.5 GHz band to systems whose satellites retrace the same path over the earth's surface on every orbit. Motorola argued that the restriction should be eliminated because it severely constrains system design, is unnecessary for inter-system coordination, and was adopted without adequate prior notice.

The FCC concludes that there is no evidence of record that an NGSO/MSS system must operate with repeating ground tracks in order to coordination with GSO/FSS systems. The FCC therefore decides to eliminate the rule provision in question.

A petitioner requested that 47 CFR 25.258(b) be amended to allow GSO FSS licensees to rely on geographic separation for coordination of uplink transmission with NGSO FSS systems. The FCC denies the request because it has concluded that the rule already permits reliance on geographical separation for that purpose.

A petitioner contended that the word “Licensed” should be stricken from § 25.258(b) because its use in that context might foster an impression that NGSO/MSS licensees need not coordinate with GSO/FSS systems proposed in pending applications. The FCC denies this amendment request. It holds that the petitioner's concern is unwarranted and, in any case, that merely deleting “Licensed” would not change the meaning of the rule provision.

Several petitioners proposed amendments to 47 CFR 25.258 to make it clear that interference should be minimized with respect to both GSO FSS and NGSO MSS systems and that NGSO applicants should demonstrate the feasibility of sharing with previously-licensed GSO systems that are not yet operational. The FCC agrees that these proposed changes should be made.

In the First Report and Order the FCC prohibited use of the 29.1-29.25 GHz frequency band for LMDS subscriber-to-hub links, but indicated that the limitation might be reconsidered in the future based on evidence that sharing is feasible. A petitioner sought clarification regarding the process that would be used to reach a determination in this regard. The FCC says in the reconsideration order that it sees no reason to prescribe a specific process for making such a determination at this time and that clarification of requirements for fixed service leasing of LMDS spectrum is under consideration in another proceeding.

The Regulatory Flexibility Act of 1980, as amended (“RFA”) requires that a regulatory flexibility analysis be prepared for rulemaking proceedings, unless the agency certifies that “the rule will not have a significant economic impact on a substantial number of small entities.” The RFA generally defines “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (“SBA”).

First, in this Memorandum Opinion and Order we eliminate a rule provision that barred use of the 29.25-29.5 GHz frequency band for transmission from earth stations to non-geostationary-orbit (i.e., “NGSO”) satellites that do not trace constant paths over the ground in successive orbits. Any applicant for a license for NGSO uplink transmission in that band is required by other provisions in the Commission's rules to demonstrate that the proposed operation (1) would not interfere with authorized operation in that band by previously-licensed systems or (2) would be conducted in accordance with coordination agreements with the licensees of such systems. With these protective measures in place, we believe that the elimination of the restriction on use of the 29.25-29.5 GHz frequency band will not have a significant economic impact on any small entities. Second, this Memorandum Opinion and Order adopts minor revisions to other rule provisions to make it clear that: (1) the frequencies and polarity of transmission to GSO satellites in the 29.25-29.5 GHz band from fixed earth stations in the vicinity of NGSO feeder-link stations must be chosen to minimize interference with reception of uplink transmission to NGSO, as well as GSO, satellites and (2) applicants for authority to use the 29.25-29.5 GHz band for feeder uplinks must show that sharing is possible with other systems that have been previously-authorized to use that band, not just systems that are currently operational. These changes merely clarify the Commission's pertinent intentions, rather than altering its policies and therefore impose no additional burden on any small entities. We therefore certify that the adoption of this Memorandum Opinion and Order will not have a significant economic impact on a substantial number of small entities. The Commission will send a copy of the Memorandum Opinion and Order, including a copy of this final certification, in a report to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996. In addition, the Memorandum Opinion and Order and this final certification will be sent to the Chief Counsel for Advocacy of the SBA and will be published in the Federal Register.

Accordingly, that the “Petition for Partial Reconsideration” filed by Motorola Satellite Communications, Inc. on September 27, 1996 is granted.

The “Petition of TRW Inc. for Clarification and/or Partial Reconsideration of the First Report and Order” filed on September 24, 1996 is granted to the extent indicated herein and is otherwise denied and that the “Petition for Reconsideration of Texas Instruments, Inc.” filed on August 28, 1996 is denied to the extent indicated herein.

Section 25.258 of the Commission's rules is amended as indicated in the rule changes, effective May 29, 2002. This action is taken pursuant to 47 U.S.C. 154(i) and 303(r).

The Commission's Consumer Information Bureau, Reference Information Center, shall send a copy of this Memorandum Opinion and Order, including the Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

Chorizanthe robusta var. hartwegii is endemic to Purisima sandstone and Santa Cruz mudstone in Scotts Valley in the Santa Cruz Mountains, Santa Cruz County, California. C. r. var. hartwegii, a short-lived annual species in the buckwheat family (Polygonaceae), is a low-growing herb with rose-pink involucral (pertaining to a circle or collection of modified leaves surrounding a flower cluster) margins confined to the basal portion of the teeth and an erect form of growth. The aggregate flowers (heads) are medium in size (1 to 1.5 centimeters (cm) (0.4 to 0.6 inches (in) in diameter) and distinctly aggregate. Each flower produces one seed; the seeds are 3.5 to 4.0 millimeters (mm) long. Hooks on the spines of the involucre (circle or collection of modified leaves surrounding a flower cluster), which surround the seed, facilitate seed dispersal.

Chorizanthe robusta var. hartwegii is one of two varieties of the species Chorizanthe robusta. The other variety ( Chorizanthe robusta var. robusta ), known as robust spineflower, is restricted to sandy soils in coastal and near-coastal areas in Santa Cruz County. We are designating critical habitat for C. r. var. robusta in a separate Federal Register notice.

The range of Chorizanthe robusta var. hartwegii comes close to, but does not overlap with that of Chorizanthe pungens var. hartwegiana (Ben Lomond spineflower), another closely related taxon in the Pungentes section of the genus, in Santa Cruz County. Chorizanthe pungens var. hartwegiana is also a federally endangered species; for a detailed description of these related taxa, see the Draft Recovery Plan for the Robust Spineflower (Service 2000) and references within this plan.

Chorizanthe robusta var. hartwegii is known from two sites about 1.6 kilometers (km) (1 mile (mi)) apart at the northern end of Scotts Valley in Santa Cruz County, California. For the most part, it co-occurs with Polygonum hickmanii, a species that is proposed for Federal listing as endangered (65 FR 67335). We proposed critical habitat for C. r. var. hartwegii and Polygonum hickmanii at the same time; however, since the final rule for Polygonum hickmanii has not been published, we are only designating critical habitat for C. r. var. hartwegii at this time.

Chorizanthe robusta var. hartwegii is found on gently sloping to nearly level fine-textured, shallow soils of the Bonnydoon series over outcrops of Santa Cruz mudstone and Purisima sandstone (Hinds and Morgan 1995, Soil Conservation Service 1980, U.S. Geologic Survey 1989). C. r. var. hartwegii occurs with other small annual herbs in patches within a more extensive annual grassland habitat. These small patches have been referred to as “wildflower fields” because they support a large number of native herbs, in contrast to the adjacent annual grasslands that support a greater number of non-native grasses and herbs. While the wildflower fields are underlain by shallow, well-draining soils, the surrounding annual grasslands are underlain by deeper soils with a greater water-holding capacity, and therefore more easily support the growth of non-native grasses and herbs. The surface soil texture in the wildflower fields tends to be consolidated and crusty rather than loose and sandy (Biotic Resources Group (BRG) 1998). Elevation of the sites is from 215 to 245 meters (m) (700 to 800 feet (ft)) (Hinds and Morgan 1995).

Chorizanthe robusta var. hartwegii is associated with a number of native herbs including Lasthenia californica (goldfields), Minuartia douglasii (sandwort), Minuartia californica (California sandwort), Gilia clivorum (gilia), Castilleja densiflora (owl's clover), Lupinus nanus (sky lupine), Brodiaea terrestris (brodiaea), Stylocline amphibola (Mount Diablo cottonweed), Trifolium grayii (Gray's clover), and Hemizonia corymbosa (coast tarplant). Non-native species present include Filago gallica (filago) and Vulpia myuros (rattail) (California Natural Diversity Data Base (CNDDB) 1998; Randy Morgan, biological consultant, pers. comm., 1998). In many cases, the habitat also supports a crust of mosses and lichens (BRG 1998).

Chorizanthe robusta var. hartwegii germinates during the winter months and flowers from April through June. Although pollination ecology has not been studied for this taxon, it is likely visited by a wide array of pollinators. Pollinators that have been observed on other species of Chorizanthe that occur in Santa Cruz County have included: leaf cutter bees (megachilids); at least 6 species of butterflies; flies; sphecid wasps; ants; and small beetles (Randy Morgan, biologist, Soquel, California, pers. comm., 2000; S. Baron, in litt . 2000; A. Murphy, in litt. , 2002). In other annual species of Chorizanthe , the flowers are protandrous, a reproductive strategy in which the anthers (male reproductive structures) mature and shed pollen prior to the maturation of the style (female reproductive structures) to receive pollen, with a delay of style receptivity being one or two 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 (James Reveal 2001). The relative importance of insect pollination and self-pollination to seed set is unknown; however, in the closely related Monterey spineflower ( Chorizanthe pungens var. pungens ), the importance of pollinator activity to production of viable seed was demonstrated by the production of seed with low viability where pollinator access was limited (Harding Lawson Associates 2000).

The plants turn a rusty hue as they dry through the summer months, eventually shattering during the fall. Seed is mature by August and dispersal is facilitated by the hooked involucral spines, which surround the seed and attach it to passing animals. Black-tailed hares ( Lepus californicus ) have been observed to browse on the related 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 small birds.

For annual plants, maintaining a seed bank (a reserve of dormant seeds, generally found in the soil) is important to its 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 give 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 hundred of seeds could be produced. In one study on a closely related spineflower, Chorizanthe robusta var. robusta, individual 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 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). Seedling mortalities of up to 42 percent in the related C. r. var. robusta have been caused primarily by the larval (caterpillar) life stage of moths belonging to the family Gelichiideae (Baron 2000).

For purposes of this rule, a cluster of individuals of Chorizanthe robusta var. hartwegii will be referred to as a “colony.” Because of the close proximity of many of the clusters to each other, it is uncertain whether clusters biologically represent patches within a metapopulation, true colonies, or separate populations. The general location of the colonies will be referred to as a “site.”

While the sites that support large colonies or populations of Chorizanthe robusta var. hartwegii most likely also support large seed banks and can sustain the species through several years of poor weather or bouts of predation, sites that support smaller populations and smaller seed banks may be more vulnerable to extirpation. The complex of colonies of C. r. var. hartwegii in the Glenwood area are in close enough proximity to each other that their seed banks most likely are dispersed between colonies; the total number of standing individuals and the attendant seed bank most likely are of sufficient magnitude to perpetuate the species in the near term, absent significant threats to the remaining habitat. In the Polo Ranch area, the colonies of C. r. var. hartwegii are also in close enough proximity to each other that their seed banks most likely are dispersed between colonies; however, the total number of individuals and the attendant seed bank are relatively smaller in magnitude here than at the Glenwood site and, therefore, this unit may be more vulnerable to extirpation if exposed to events such as several years of poor weather or bouts of predation.

The total number of colonies of Chorizanthe robusta var. hartwegii is difficult to count for several reasons: (1) Depending on the scale at which colonies are mapped, a larger or smaller number of colonies may result, and (2) depending on the climate and other annual variations in habitat conditions, the extent of colonies may either shrink and temporarily disappear, or enlarge and merge into each other, thus appearing as larger but fewer colonies.

The distribution of colonies is generally concentrated at two sites. The Glenwood site is located north of Casa Way and west of Glenwood Drive in northern Scotts Valley (see map at end of rule) and contains a large number of colonies of Chorizanthe robusta var. hartwegii that occur on three privately owned parcels of land. Colonies of C. r. var. hartwegii are situated within a 4 hectare (ha) (9 ac) preserve on a parcel owned by the Scotts Valley Unified School District and referred to as the “School District” colony (Denise Duffy and Associates 1998). Other colonies at the Glenwood site are located approximately 0.20 km (0.13 mi) to the west of the School District colony on a parcel of land owned by the Salvation Army (CNDDB 1998) and are referred to as the “Salvation Army” colonies. Additional colonies of C. r. var hartwegii are located on a parcel owned by American Dream/Glenwood L.P. and are referred to as the “Glenwood” colonies; the parcel has been approved for development by the City of Scotts Valley (Keenan Land Company (KLC) 2001). As currently approved, the project would retain colonies on the west side of Glenwood Drive and on the east side of Glenwood Drive in portions of the parcel that are being designated as open space (Impact Sciences 2001, KLC 2001).

The first extensive effort to map the distribution and abundance of Chorizanthe robusta var hartwegii within the area included in the Glenwood unit was carried out in 1992; surveyors mapped 30 “populations/occurrences” of C. r. var. hartwegii , with occurrences comprising from a low of one individual to over 25,000, and including a total of approximately 100,000 individuals. Additionally 82 patches of “suitable habitat” were mapped (Habitat Restoration Group 1992). Construction of the Scotts Valley High School in 1999 resulted in the loss of approximately 6 populations and occurrences, 890 individuals, and 34 patches of “suitable habitat” (Denise Duffy and Associates 1997, 1998).

In addition to direct removal of habitat, habitat fragmentation affects the long-term conservation of the species by reducing connectivity among colonies and populations, by altering microsite drainage patterns, and by providing access to vectors that cause secondary impacts, such as the spread of non-native species. Because the high school is located within the central portion of the Glenwood unit, its construction significantly fragmented the grasslands that were once contiguous and that provided connectivity between the Salvation Army, School District, and Glenwood colonies. Two access roads, one on each side of Glenwood Drive, have been constructed in the last three years; one was placed between colonies of Chorizanthe robusta var. hartwegii , and the other was placed between colonies and other patches of wildflower fields. In the fall of 2001, an arson wildfire burned approximately 12 ha (5 ac) of grassland between Teacup and Cupcake Hill, coming close to, but not directly damaging individuals of C. r. var. hartwegii . This event highlighted the potential for damage to the species' habitat, not only from a fire event that is not part of a habitat management plan, but also from the vehicles dispatched to extinguish the fire (K. Lyons, consultant, Santa Cruz, CA, pers. comm., 2002).

The second site is referred to as the “Polo Ranch” site. Located just east of Highway 17 and north of Navarra Drive in northern Scotts Valley, this site is approximately 1.6 km (1 mi) east of the Salvation Army and School District colonies. Colonies within the Polo Ranch site occur on a parcel of land owned by Greystone Homes (Lyons in litt. 1997); a number of these colonies of Chorizanthe robusta var. hartwegii occur within 0.2 km (0.1 mi) of each other (Lyons in litt. 1997, Impact Sciences 2000). In 1997 surveys, C. r. var. hartwegii was found at 25 locations and comprised approximately 8,000 individuals; the abundance and distribution was similar to that recorded in 1990 (Lyons in litt. 1997). We believe that the abundance and distribution of C. r. var. hartwegii has been reduced by disturbance to the site by illegal off-highway vehicle use since that time (Service in litt. 2000).

Chorizanthe robusta var. hartwegii is threatened with extinction by habitat alteration due to secondary impacts of urban development. Urban development includes the recent construction and operation of a high school; installation and maintenance of water delivery pipelines, access roads, and water tanks; and currently existing and proposed housing. Over the last decade a variety of housing proposals have been considered for two of the parcels; the Glenwood development was approved by the City of Scotts Valley in late 2001 (Keenan Land Company 2001), and the proposed Polo Ranch development is currently on hold due to other legal issues.

The small range of this taxon makes it vulnerable to edge effects from adjacent human activities. The kinds of habitat alterations expected to impact Chorizanthe robusta var. hartwegii as a result of development include changes in soil characteristics such as surface and subsurface water flow and soil compaction; increased disturbance due to trampling from humans, pets, and bicycle traffic; the inadvertent application of herbicides and pesticides; over-spray from landscape irrigation, dumping of yard wastes; and the introduction and spread of non-native species (Conservation Biology Institute 2000). Due to their small size, the proposed preserves and open space areas intended to protect C. r. var. hartwegii are inadequate for maintaining viable populations of this species (Service in litt . 1998). Studies on habitat fragmentation and preserves established in urbanized settings have shown that these preserves gradually become destabilized from external forces ( i.e. , changes in the hydrologic conditions, soil compaction, etc.), resulting in preserves that are no longer able to support the species that they were established to protect (Kelly and Rotenberry 1993).

The chance of random extinction for Chorizanthe robusta var. hartwegii is also increased due to the limited area of habitat available for this species (Shaffer 1981). Because the colonies are concentrated at only a few sites, a random environmental event ( e.g. , fire) or human disturbance potentially could destroy all colonies occurring on a parcel, thus diminishing the likelihood of long-term persistence.

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 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 this time, we also reviewed the status of Chorizanthe robusta . var. robusta. On October 24, 1991 (56 FR 55107), we published a proposal to list both varieties of Chorizanthe robusta as endangered species. On February 4, 1994, we published a final rule that listed C. robusta as endangered, inclusive of C. r. var. hartwegii and C. r. var. robusta (59 FR 5499). Proposed designation of critical habitat for these taxa was believed prudent but not determinable at the time of listing. A Recovery Plan covering two insect species and four plant species from the Santa Cruz Mountains, including C. r. var. hartwegii , was published in 1998 (Service 1998).

On June 30, 1999, our failure to designate critical habitat for Chorizanthe robusta , inclusive of var. hartwegii and var. 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 was published. On October 16, 2000, the court granted the government's request for a stay of this order. Subsequently, by a stipulated settlement agreement signed by the parties on November 20, 2000, the Service agreed to propose critical habitat for C. r. var. hartwegii by January 15, 2001, and to sign a final rule by October 19, 2001. The plaintiffs subsequently agreed to an extension, approved by the court, 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. hartwegii was sent to the Federal Register on January 16, 2001, and was published in the Federal Register February 15, 2001 (66 FR 10469). In the proposal, we determined that it was prudent to designate approximately 125 ha (310 ac) of lands in Santa Cruz County as critical habitat. The publication of the proposed rule opened a 60-day public comment period, which closed on April 16, 2001. On September 19, 2001, we published a notice announcing the reopening of the comment period on the proposal to designate critical habitat for C. r. var. hartwegii, and a notice of availability of the draft economic analysis on the proposed determination (66 FR 48227). 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 notice in the Santa Cruz Sentinel on February 24, 2001. We received individually written letters from seven parties, including three designated peer reviewers, and two environmental groups. Approximately 800 additional letters were submitted as part of a mailing campaign. Of the seven parties responding individually, five supported the proposed designation, one was neutral, and one was opposed. 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 and Chorizanthe robusta var. hartwegii. Similar comments were grouped into three general issues relating specifically to biological issues, procedural and legal issues, and economic issues. These are addressed in the following summary.

Comment 1: The proposed designation is not properly supported by the best scientific information available. In particular, the Service makes “numerous and unsupported assertions regarding the biology and habitat requirements” of the species, and did not use the data available to them.

Service Response: 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. hartwegii. This information included data from the California Natural Diversity Data Base (CNDDB 2000), geologic and soil survey maps (USGS 1989, SCS 1980), recent biological surveys and reports, our recovery plan for this species, additional information provided by interested parties, and discussions with botanical experts. We also conducted multiple site visits to the two locations that were proposed for designation.

Comment 2: 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. hartwegii.

Our Response: While we recognize that these factors may be important components of the habitats within which Chorizanthe robusta var. hartwegii is found, we do not have sufficient information at this time that leads us to believe they are the primary factors essential to the conservation of C. r. var. hartwegii throughout its range.

Comment 3: One commenter submitted a map portraying a recommended revision to the proposed critical habitat covering the parcel owned by American Dream/Glenwood L.P. which would reduce the extent of critical habitat on that parcel. The commenter suggested that the swath of low-elevation grasslands that occur along Carbonera Creek in the middle of the Glenwood Unit could be eliminated from critical habitat, as well as a portion of the Carbonera Creek watershed above them, because the low-level grasslands do not support the primary constituent elements, and the presence of existing residential development and the Scotts Valley High School along Glenwood Drive makes this area a less desirable movement corridor for wildlife functioning as dispersal agents.

Our Response: The low-elevation grasslands along Carbonera Creek do support some of the primary constituent elements, including; a grassland community, area to allow for adequate seed dispersal between existing colonies and other suitable sites, and areas that allow pollinator activity between existing colonies. In particular, the low-level grasslands along Carbonero Creek provide an important corridor for dispersers and pollinators between the colonies on the west and east sides of Glenwood Drive. The recent development of the Scotts Valley High School has reduced the extent of the corridor between the east and west sides of Carbonero Creek, and has therefore increased the conservation value and importance of the remaining corridor for pollinators and seed dispersers. In the background section of this final rule, we have expanded the discussion of potential seed dispersers and pollinators, which are part of the primary constituent elements, to clarify the role that these elements play in the long-term conservation of the species.

The recovery plan for the species states that to downlist the species from endangered to threatened, all known sites would have to be in protected status, a habitat conservation plan would have to be in place with the City of Scotts Valley, and population numbers would have to be stable or increasing (Service 1998). The limited range of the species, the limited opportunities for conservation, and the existence of threats on all locations where it occurs, makes conservation of the species very difficult. Further loss of habitat or compromising the ecological processes on which the species depends may eliminate the ability of the species to persist.

Comment 4: The proposed designation fails to designate specific areas as critical habitat; rather, it uses a landscape approach.

Service Response: The critical habitat designation delineates areas which contain locations of known individuals of Chorizanthe robusta var. hartwegii and areas with the constituent elements that we believe are necessary for the long-term conservation of C. r. var. hartwegii . The distribution of C. r. var. hartwegii is so restricted that direct and indirect threats to its habitat may preclude our ability to recover the species. Given the limited distribution of the species, we were able to map critical habitat for it with a high level of precision.

Comment 5: The proposed designation improperly includes areas not essential to the conservation of Chorizanthe robusta var. hartwegii.

Service Response: We recognize that not all parcels of land proposed and designated as critical habitat contain the habitat components essential to the conservation of Chorizanthe robusta var. hartwegii. Some lands included in the proposed designation have not been included in this final designation. In developing the final designation, we modified boundary lines to exclude areas that obviously did not contain the primary constituent elements, and for which we were unable to draw more precise boundaries at the time of the proposed designation. The use of recently acquired high-resolution aerial photographs dating from April 2000 enabled us to undertake this more precise mapping. However, due to our mapping scale, some areas not essential to the conservation of C. r. var. hartwegii were included within the boundaries of final critical habitat. Certain features, such as, buildings, roads, other paved areas and urban landscaped areas do not contain the primary constituent elements for the species. Service staff at the contact numbers provided are available to assist landowners in discerning whether or not lands within the critical habitat boundaries actually possess the primary constituent elements for the species.

Comment 6: The proposed designation fails to delineate between occupied and unoccupied habitat areas.

Service Response: In this final designation all of the critical habitat units are occupied by either standing plants or support a Chorizanthe robusta var. hartwegii seed bank, but each of the units probably contains areas that are considered currently unoccupied by the species. “Occupied” is defined here as an area that may or may not have an above-ground standing mass of C. r. var. hartwegii during current surveys, but if no standing mass is apparent, the site likely contains a below-ground seed bank of indefinite boundary. 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 standing mass of C. r. var. hartwegii and the unlikely existence of a viable seed bank. 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. 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.

The commenter also cited that there is a lack of data to show that colonies may temporarily disappear or expand into areas surrounding the immediate vicinity of the current year's colony. Determining the specific areas that this taxon occupies is difficult for several reasons: (1) The way the current distribution of Chorizanthe robusta var. hartwegii 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 (2) 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 seedbank 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 any meaningful way what proportion of each critical habitat unit may actually be occupied by C. r. var. hartwegii .

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)). Because of the very limited range of Chorizanthe robusta var. hartwegii , designating only occupied areas would not meet the conservation requirements of the species. Occupied areas, as well as the grassland areas around them within the designated units of critical habitat which may be occupied in the future, provide the essential life-cycle needs of the species and provide some or all of the habitat components essential for the conservation (primary constituent elements) of C. r. var. hartwegii. We are designating critical habitat for C. r. var. hartwegii in all areas that are known to currently be occupied by the species. Even so, we believe that the small amount of critical habitat that we are designating for C. r. var. hartwegii will be insufficient to provide for its recovery because of the development projects that are proposed and the secondary impacts that will result from the development. At this time, we are not aware of additional populations of C. r. var. hartwegii nor additional areas that can be occupied by the species in the future.

Comment 7: The Service should review the endangered status of Chorizanthe robusta var. hartwegii. Since the listing of the species, no new information about the habitats essential to the species had been obtained.

Service Response: Since the time of listing in 1994, we have reviewed new information from the CNDDB, biological surveys, botanists in the field familiar with the species, and made numerous visits to field sites. From this information, we believe that the range of the species is limited to the Scotts Valley area. Since the species was listed as endangered in 1994, habitat for the species has been destroyed due to several development projects, and additional habitat has been altered due to secondary impacts resulting from development. According to a review of the socioeconomic information available about the geographic area presented in the draft economic analysis, pressure on the remaining suitable habitat for the species from residential and commercial development and recreation, has increased steadily since the species was listed in 1994. The increased pressure on the limited area currently available for this species reinforces its endangered status and the need to designate critical habitat.

Comment 8: The Service has failed to properly consider the economic and other impacts of designating particular areas as critical habitat.

Service Response: The Service published the economic analysis for designating the critical habitat for Chorizanthe robusta var. hartwegii on September 19, 2001 (66 FR 48227). There was a 30-day public comment period associated with this publication. Comments received on the economic analysis are incorporated with the comments received on the other portions of the proposed designation in this final rule. In addition, an addendum to the economic analysis, incorporating the comments received on the economic analysis, has been completed and is available upon request ( see ADDRESSES section).

Comment 9: The Service has improperly bifurcated its consideration of economic impacts and other factors.

Service Response: Pursuant to section 4(b)(2) of the Act, we are to evaluate, among other relevant factors, the potential economic effects of the designation of critical habitat for Chorizanthe robusta var. hartwegii. We published our proposed designation in the Federal Register on February 15, 2001 (66 FR 10469). At that time, our Division of Economics and their consultants, Industrial Economics, Inc., initiated the draft economic analysis. The draft economic analysis was made available for public comment and review beginning on September 19, 2001 (66 FR 48227). Following a 30-day public comment period on the proposal and draft economic analysis, a final addendum to the economic analysis was developed. Both the draft economic analysis and final addendum were used in the development of this final designation of critical habitat for C. r. var. hartwegii. Please refer to the Economic Analysis section of this final rule for a more detailed discussion of these documents.

Comment 10: The Service has not provided a fair and meaningful opportunity for comment on its proposed designation.

Service Response: We published a proposed rule to designate critical habitat for Chorizanthe robusta var. hartwegii on February 15, 2001 (66 FR 10469), and accepted comments from the public for 60 days, until April 16, 2001. The comment period was reopened from September 19, 2001, to October 19, 2001 (66 FR 48227) and February 1, 2002, to February 15, 2002 (67 FR 4940), to allow for additional comments on the proposed designation, and comments on the draft economic analysis of the proposed critical habitat.

We contacted all appropriate State and Federal agencies, county governments, elected officials, and other interested parties and invited them to comment. In addition, we invited public comment through the publication of a notice in the Santa Cruz Sentinel on February 24, 2001. We provided notification of the draft economic analysis through telephone calls, letters, and news releases faxed and/or mailed to affected elected officials, local jurisdictions, and interest groups. Additionally, the public had the opportunity to request a public hearing, but none was requested.

Comment 11: The Service should prepare and consider an environmental impact statement in keeping with NEPA.

Service Response: We have determined that an Environmental Assessment and/or an Environmental Impact Statement as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Endangered Species Act as amended. A notice outlining our reason for this determination was published in the Federal Register on October 25, 1983 (48 FR 49244). Also, the public involvement and notification requirements under both the Endangered Species Act and the Administrative Procedure Act provide ample opportunity for public involvement in the process, similar to the opportunities for public involvement and economic analysis of effects that would be provided in the NEPA process.

Comment 12: Some commenters expressed concern that the economic analysis fails to adequately describe the potential social welfare benefits of the rule such as the averted cost to society if, absent the rule, the areas identified in this rule are developed or somehow used in a manner that leads to the extinction of the species.

Our Response: We recognize that social welfare generally benefits from the conservation and recovery of endangered and threatened species and their habitat as numerous studies have shown that society values open space and biodiversity. Benefits to social welfare are composed of direct and passive use benefits. Examples of direct use benefits, as it may relate to species protection, include such activities as commercial cultivation of a species for medicinal purposes ( e.g. , the Pacific yew tree) and tourism associated with a species' presence ( e.g. , traveling to a certain part of the country just to see protected species and their habitat). Passive use benefits may include such values as option, bequest, and existence values that include, respectively, the value to society of future direct use benefits, the value of conserving species and their habitat for future generations, and the value gained by society from simple acknowledgment that a species continues to exist in its natural habitat.

While we have acknowledged the potential for society to experience such benefits in our economic analyses for critical habitat rulemakings, our ability to actually measure these benefits in any meaningful way is difficult and imprecise at best. While we are aware of many studies that attempt to identify the social benefits of open space, the use of public lands for recreational purposes, the cost of sprawl, etc. , few of these studies provide any meaningful information that can be used to develop estimates associated with critical habitat designation. The designation of critical habitat does not necessarily inhibit development of private property, which makes it difficult to draw upon the literature of the economic values of open space to identify potential benefits of critical habitat designation. Also, while some economic studies attempt to measure the social value of protecting endangered species, the species that are often valued are well known and easy to identify ( e.g. , bighorn sheep) in contrast to less high profile species. Furthermore, the values identified in these studies would be most closely associated with the listing of a species as endangered or threatened because the listing serves to provide the majority of protection and conservation benefits under the Act.

While we will continue to explore ways that will allow us to provide more meaningful descriptions of the potential social benefits associated with critical habitat designation, we believe that due to the current lack of available data specific to these rulemakings, along with the time and resource constraints imposed upon the Service, the benefits of critical habitat designation can best be expressed in biological terms that can then be weighed against the expected social costs of the rulemaking.

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 reevaluated our proposed designation and made several changes to the final designation of critical habitat. These include the following:

(1) The description of the primary constituent elements was modified and clarified. One peer reviewer suggested expanding the list of primary constituent elements ( see comment 2 in Summary of Comments above). However, we took some of these additional elements suggested by the peer reviewer, and included discussion of them as features of the landscape that needed special management or protections.

(2) One element (“physical processes. * * * that support natural dune dynamics”) was erroneously included in the proposed rule; it has been removed from this final rule.

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

(4) We made minor revisions to the boundary lines on both units. The purpose for these minor changes was to remove areas that do not contain 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. These changes reduced the Glenwood Unit by 4 percent and Polo Ranch Unit was reduced 15 percent by eliminating some of the riparian gallery forest at the western edge of the unit that borders Carbonero Creek because the area does not support any of the primary constituent elements.

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.

Section 7(a)(2) of the Act requires Federal agencies to consult with the Service to ensure that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification critical habitat. 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 our regulations at 50 CFR 402.02, we define destruction or adverse modification as “a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical.” Aside from the added protection that may be provided under section 7, the Act does not provide other forms of protection to lands designated as critical habitat. Because consultation under section 7 of the Act does not apply to activities on private or other non-Federal lands that do not involve a Federal nexus, critical habitat designation would not afford any additional protections under the Act against such activities.

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 of the Act 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 will often 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. Within the geographic area occupied by the species, we will attempt to not designate areas that do not now have the primary constituent elements, as defined at 50 CFR 424.12(b), which provide essential life cycle needs of the species. However, we may be restricted by our minimum mapping unit or mapping scale.

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, at a minimum, be the listing package for the species. Additional information may be obtained from a recovery plan, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, unpublished materials, and expert opinion.

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 the section 9 of the Act 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 section 4(b)(2) of the Act and regulations at 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. hartwegii. This information included information from the CNDDB 2000, geologic and soil survey maps (USGS 1989, SCS 1979), recent biological surveys and reports, our recovery plan for this species, additional information provided by interested parties, and discussions with botanical experts. We also conducted multiple site visits to the two locations that are being designated as critical habitat.

We also reviewed the goals for downlisting Chorizanthe robusta var. hartwegii included in our recovery plan that addresses this species and other taxa from the Santa Cruz Mountains (Service 1998).

The plan calls for the following recovery actions: (1) Secure and protect habitat for Chorizanthe robusta var. hartwegii through HCPs, conservation easements, or acquisition; (2) manage habitat for the species through such actions as control of non-native species, reducing impacts from recreation, restoring degraded sites, and regular monitoring; (3) learn more about the life history, ecology, and population dynamics of the species that will contribute to developing appropriate management strategies; (4) increase public awareness of the species and its associated habitats through various outreach efforts; and (5) use an adaptive management approach to revise management strategies over time. Critical habitat alone is not expected to recover the species, and it is only one of many strategies that can assist in such recovery.

Determining the specific areas that this taxon occupies is difficult for several reasons: (1) The distribution of Chorizanthe robusta var. hartwegii 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. hartwegii above ground; (2) the way the current distribution of C. r. var. hartwegii 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 seedbank 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 any meaningful way what proportion of each critical habitat unit may actually be occupied by C. r. var. hartwegii. 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. 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. hartwegii is described in the Background section of this final rule. Based on the best available information at this time, we believe the long-term probability of the conservation of C. r. var. hartwegii is dependent upon the protection of existing population sites, and the maintenance of ecologic functions within these sites, including connectivity between colonies within close geographic proximity to facilitate pollinator activity and seed dispersal mechanisms, and the ability to maintain disturbance factors (for example, fire disturbance) that maintain the openness of plant cover on which the species depends. In addition, the small range of this species makes it vulnerable to edge effects from adjacent human activities, including disturbance from trampling and recreational use, the introduction and spread of non-native species, and the application of herbicides, pesticides, and other contaminants (Conservation Biology Institute 2000).

The primary constituent elements of critical habitat for Chorizanthe robusta var. hartwegii are:

(1) Thin soils in the Bonnydoon series that have developed over outcrops of Santa Cruz mudstone and Purisima sandstone;

(2) “Wildflower field” habitat that has developed on these thin-soiled sites;

(3) A grassland plant community that supports the “wildflower field” habitat, that is stable over time and in which nonnative species are absent or are at a density that has little or no adverse effect on resources available for growth and reproduction of Chorizanthe robusta var. hartwegii ;

(4) Sufficient areas around each population to allow for recolonization to adjacent suitable microhabitat sites in the event of catastrophic events;

(5) Pollinator activity between existing colonies of Chorizanthe robusta var. hartwegii;

(6) Seed dispersal mechanisms between existing colonies and other potentially suitable sites; and

(7) Sufficient integrity of the watershed above habitat for Chorizanthe robusta var. hartwegii to maintain soil and hydrologic conditions that provide the seasonally wet substrate for growth and reproduction of C. r. var. hartwegii.

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

(1) The soils on which Chorizanthe robusta var. hartwegii is found should be maintained to optimize conditions for its persistence. Physical properties of the soil, such as its chemical composition, surface crust, and drainage capabilities would best be maintained by limiting or restricting the use or application of herbicides, fertilizers, or other soil amendments.

(2) Overspray from irrigation or saturation of soils beyond the normal season should also be avoided, as this may alter the structure and composition of the grassland community, or render the native species more vulnerable to pathogens found in wetter soil regimes.

(3) The associated plant communities must be maintained to ensure that the habitat needs of pollinators and seed dispersal agents are maintained. For pollinators, the use of pesticides should be limited or restricted so that healthy populations of pollinators are present to effect seed set in Chorizanthe robusta var. hartwegii. For dispersal agents, the fragmentation of habitat through construction of roads and certain types of fencing should be limited so that these agents may disperse seed of C. r. var. hartwegii throughout the unit.

(4) Within the grassland community where Chorizanthe robusta var. hartwegii occurs, invasive, non-native species such as bromes and other species may need to be actively managed to maintain the patches of open habitat that C. r. var. hartwegii needs.

(5) Certain areas where Chorizanthe robusta var. hartwegii occurs may need to be fenced to protect it from accidental or intentional trampling by humans and livestock. While C. r. var. hartwegii 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. hartwegii during its critical season of growth and reproduction.

In delineating the critical habitat units, we selected areas that provide for the conservation of Chorizanthe robusta var. hartwegii at the only two sites where it is known to occur. We believe it is important to preserve all areas that currently support native populations of C. r. var. hartwegii because the current range of the species is so restricted that it places great importance on the conservation of all the known remaining sites. The species is currently growing on less than 0.4 ha (1 ac) of land. However, habitat is not restricted solely to the area where standing individuals can be observed. Habitat for the species must include an area that is large enough to maintain the ecological functions upon which the species depends ( e.g., the hydrologic and soil conditions for seed germination and establishment, pollinators and seed dispersers). We believe it is important to designate an area of sufficient size to maintain landscape scale processes that maintain the patches of wildflower field habitat, and to minimize the alteration of habitat, such as invasions of non-native species and recreation-caused erosion, that result from human occupancy and human activities occurring in adjacent areas.

We delineated the critical habitat units by creating data layers in a geographic information system (GIS) format of the areas of known occurrences of Chorizanthe robusta var. hartwegii using information from the California Natural Diversity Data Base (CNDDB 2000) and the other information sources listed above. 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. Because the areas within proposed critical habitat boundaries were portions of the San Augustin Spanish Land Grant, they have not been surveyed according to the State Plan Coordinate System. Therefore, instead of defining proposed critical habitat boundaries using a grid of township, range, and section, we defined the boundaries for the proposed critical habitat units using known landmarks and roads.

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 through our use of data layers created at a small scale (for example 1:100,000 scale USGS mapping) during preparation of the maps of proposed critical habitat. For the final rule, we corrected the mapped boundaries of critical habitat first 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 (April 2000) aerial imagery, additional information from botanical experts, and comments on the proposed rule. The boundaries of the final critical habitat units are defined by Universal Transverse Mercator (UTM).

In selecting areas of critical habitat, we made an effort to avoid developed areas, such as housing developments, which are unlikely to contribute to the conservation of Chorizanthe robusta var. hartwegii. For the final rule, we attempted to map critical habitat in sufficient detail to exclude all developed areas (buildings), or other lands unlikely to contain the primary constituent elements essential for the conservation of C. r. var. hartwegii. Note that other areas within the boundaries of the mapped units, such as roads, parking lots, and other paved areas, lawns, and other urban landscaped areas will not contain any of the primary constituent elements. Federal actions limited to these areas, therefore would not trigger a section 7 of the Act 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 essential for the species' conservation. Critical habitat for Chorizanthe robusta var. hartwegii is being designated at the only two sites where it is known to occur and both units are currently occupied with known occurrences of C. r. var. hartwegii. These areas provide the essential life cycle needs of the species and the habitat components essential for the survival of C. r. var. hartwegii. The two units are primarily within the city limits of Scotts Valley in Santa Cruz County, with a small portion within an unincorporated area of Santa Cruz County, California, and include the grassland habitat that contains the “wildflower field” patches on which the species depends. Given the threats to the habitat of C. r. var. hartwegii discussed above, we believe that these areas are likely to require special management considerations and protection.

Because we consider maintaining hydrologic and soil conditions so important in these grasslands, the critical habitat area extends outward to the following limits—(1) Upslope from the occurrences of Chorizanthe robusta var. hartwegii to include the upper limit of the immediate watershed; (2) downslope from the occurrences of C. r. var. hartwegii to the point at which grassland habitat is replaced by forest habitats (oak forest, redwood forest, or mixed conifer-hardwood forest); and (3) to the boundary of existing development.

We are designating the following general areas as critical habitat ( see legal descriptions for exact critical habitat boundaries).

Unit 1 consists of approximately 87 ha (214 acres) to the west of Glenwood Drive and north and northwest of Casa Way, in the City of Scotts Valley, including land owned and managed by the Salvation Army, land owned and managed by the Scotts Valley High School District as a preserve, but excluding the rest of the High School, and to the east of Glenwood Drive, encompassing the parcel known as the Glenwood Development. Most of the land being designated within this unit is privately owned, with a small portion (4 ha (9 ac)) owned by a local agency. This unit is essential because it supports approximately 90 percent of the known numbers of individuals of Chorizanthe robusta var. hartwegii, as well as other suitable patches of wildflower field habitat that could be colonized by the species; intervening habitat which supports the grassland community necessary for pollinators and seed dispersers; and a contiguous extent of the watershed that is necessary to maintain the hydrologic and soil conditions suitable for C. r. var. hartwegii .

The Polo Ranch site consists of approximately 30 ha (73 ac) to the east of Carbonera Creek on the east side of Highway 17 and north and northeast of Navarra Drive, in the City of Scotts Valley, known as the Polo Ranch, in the County of Santa Cruz, California. All of the land being designated as critical habitat is privately owned. This unit is essential because it supports approximately 10 percent of the known numbers of individuals of Chorizanthe robusta var. hartwegii, as well as other suitable patches of wildflower field habitat that could be colonized by the species; intervening habitat which supports the grassland community necessary for pollinators and seed dispersers; and a contiguous extent of the watershed that is necessary to maintain the hydrologic and soil conditions suitable for C. r. var. hartwegii.

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

Section 7 (a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is designated or proposed. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a proposed species or result in destruction or adverse modification of proposed critical habitat. Conference reports provide conservation recommendations to assist the agency in eliminating conflicts that may be caused by the proposed action. The conservation recommendations in a conference report are advisory. We may issue a formal conference report if requested by a Federal agency. Formal conference reports include an opinion that is prepared according to 50 CFR 402.14, as if the species was listed or critical habitat were designated. We may adopt the formal conference report as the biological opinion when the species is listed or critical habitat is designated, if no substantial new information or changes in the action alter the content of the opinion ( see 50 CFR 402.10 (d)).

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

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

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

Activities on Federal lands that may affect Chorizanthe robusta var. hartwegii or its critical habitat will be subject to the section 7 of the Act consultation process. Activities on private or State lands requiring a permit from a Federal agency, such as a permit from the U.S. Army Corps of Engineers (Corps) under section 404 of the Clean Water Act or any other activity requiring Federal action ( i.e., funding, authorization) will also continue to be subject to the section 7 of the Act consultation process. Federal actions not affecting critical habitat, as well as actions on non-Federal lands that are not federally funded or permitted, will not require section 7 of the Act consultation.

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

Common to both definitions is an appreciable detrimental effect on the recovery of a listed species. Given the similarity of these definitions, actions likely to destroy or adversely modify critical habitat would almost always result in jeopardy to the species concerned, particularly when the area of the proposed action is occupied by the species concerned. Because both of the units we are designating are occupied by either standing plants or a Chorizanthe robusta var. hartwegii seed bank, and Federal agencies already consult with us on activities in areas where the species may be present to ensure that their actions do not jeopardize the continued existence of the species, the designation of critical habitat is not likely to result in a significant regulatory burden above that already in place due to the presence of the listed species. Actions on which Federal agencies consult with us include, but are not limited to:

(1) Development on private lands requiring permits from Federal agencies, such as section 404 of the Clean Water Act permits from the U.S. Army Corps of Engineers;

(2) Restoration projects sponsored by the Natural Resources Conservation Service;

(3) Pest control projects undertaken by the Animal and Plant Health Inspection Service, permits from Housing and Urban Development, or authorization of Federal grants or loans.

Such activities would be subject to the section 7 of the Act consultation process. Where federally listed wildlife species occur on private lands proposed for development, any habitat conservation plans submitted by the applicant to secure an incidental take permit according to section 10(a)(1)(B) of the Act would be subject to the section 7 of the Act consultation process. The Ohlone tiger beetle ( Cicindela ohlone ), a federally endangered species, occurs in close proximity to Chorizanthe robusta var. hartwegii within grasslands on the east side of Carbonero Creek on land owned by American Dream/Glenwood L.P.

Section 4(b)(8) of the Act requires us to briefly describe and evaluate in any proposed or final regulation that designates critical habitat those activities involving a Federal action that may adversely modify such habitat or that may be affected by such designation. Activities that may destroy or adversely modify critical habitat would be those that alter the primary constituent elements to the extent that the value of critical habitat for the conservation of Chorizanthe robusta var. hartwegii is appreciably reduced. We note that such activities may also jeopardize the continued existence of the species. Activities that, when carried out, funded, or authorized by a Federal agency, may directly or indirectly destroy or adversely modify critical habitat include, but are not limited to:

(1) Activities that alter watershed characteristics in ways that would appreciably alter or reduce the quality or quantity of surface and subsurface flow of water needed to maintain natural grassland communities and the wildflower field habitat. Such activities adverse to Chorizanthe robusta var. hartwegii could include, but are not limited to: vegetation manipulation such as chaining or harvesting timber in the watershed upslope from C. r. var. hartwegii ; maintaining an unnatural fire regime either through fire suppression or prescribed fires that are too frequent or poorly-timed; residential and commercial development, including road building and golf course installations; agricultural activities, including orchards, viticulture (the cultivation of grapes), row crops, and livestock grazing; and

(2) Activities that appreciably degrade or destroy native grassland communities, including but not limited to livestock grazing, clearing, discing, introducing or encouraging the spread of nonnative species, and heavy recreational use.

If you have questions about whether specific activities may constitute adverse modification of critical habitat, contact the Field Supervisor, Ventura Fish and Wildlife Office ( see ADDRESSES section). Requests for copies of the regulations on listed wildlife and inquiries about prohibitions and permits may be addressed to the U.S. Fish and Wildlife Service, Portland Regional Office, 911 NE 11th Avenue, Portland, OR 97232-4181 (503/231-6131, FAX 503/231-6243).

Currently, there are no HCPs that include Chorizanthe robusta var. hartwegii as a covered species. Section 10(a)(1)(B) of the Act authorizes us to issue permits for the take of listed species incidental to otherwise lawful activities. An incidental take permit application must be supported by an HCP that identifies conservation measures that the permittee agrees to implement for the species to minimize and mitigate the impacts of the permitted incidental take. Although “take” of listed plants is not prohibited by the Act, listed plant species may also be covered in an HCP for wildlife species.

In the event that future HCPs covering Chorizanthe robusta var. hartwegii are developed within the boundaries of designated critical habitat, we will work with applicants to ensure that the HCPs provide for protection and management of habitat areas essential for the conservation of this species. This will be accomplished by either directing development and habitat modification to nonessential areas, or appropriately modifying activities within essential habitat areas so that such activities will not adversely modify the primary constituent elements. The HCP development process would provide an opportunity for more intensive data collection and analysis regarding the use of particular habitat areas by C. r. var. hartwegii. The process would also enable us to conduct detailed evaluations of the importance of such lands to the long-term survival of the species in the context of constructing a biologically configured system of interlinked habitat blocks. We will also provide technical assistance and work closely with applicants throughout the development of any future HCPs to identify appropriate management for lands essential for the long-term conservation of C. r. var. hartwegii. Furthermore, we will complete intra-Service consultation on our issuance of section 10(a)(1)(B) permits for these HCPs to ensure permit issuance will not destroy or adversely modify critical habitat.

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

Following the publication of the proposed critical habitat designation, a draft economic analysis was conducted to estimate the potential economic effect of the designation. The draft analysis was made available for review on September 19, 2001. We accepted comments on the draft analysis until October 19, 2001.

Our draft economic analysis evaluated the potential future effects associated with the listing of Chorizanthe robusta var. hartwegii as a threatened species under the Act, as well as any potential effect of the critical habitat designation above and beyond those regulatory and economic impacts associated with listing. To quantify the proportion of total potential economic impacts attributable to the critical habitat designation, the analysis evaluated a “without critical habitat” baseline and compared it to a “with critical habitat” scenario. The “without critical habitat” baseline represented the current and expected economic activity under all modifications prior to the critical habitat designation, including protections afforded the species under Federal and State laws. The difference between the two scenarios measured the net change in economic activity attributable to the designation of critical habitat. The categories of potential costs considered in the analysis included the costs associated with: (1) Conducting section 7 of the Act consultations associated with the listing or with the critical habitat, including incremental consultations and technical assistance; (2) modifications to projects, activities, or land uses resulting from the section 7 of the Act consultations; (3) uncertainty and public perceptions resulting from the designation of critical habitat; and (4) potential offsetting beneficial costs associated with critical habitat including educational benefits. The most likely economic effects of critical habitat designation are on private landowners carrying out development activities funded or authorized by a Federal agency.

Based on our draft analysis, we concluded that the designation of critical habitat would have little significant additional regulatory burden or associated significant additional costs because of critical habitat above and beyond those attributable to the listing of Chorizanthe robusta var. hartwegii. Our economic analysis does take into account that unoccupied habitat is being designated and that there may be some cost associated with new section 7 consultations that would not have occurred but for critical habitat being designated. Our economic analysis also recognizes that there may be economic effects due to the reaction of the real estate market to critical habitat designation, as real estate values may be temporarily lowered due to perceived increase in the regulatory burden. However, we believe these impacts will be short-term or minimal in cost.

The draft economic analysis concludes that, over the next 10 years the total costs to all landowners attributable to the designation are expected to be approximately $16,000 to $56,000 annually, however, we anticipate the costs will be even less because the costs of preparing Environmental Impact Reports for proposed developments, which were figured into the estimates, would have already been prepared to satisfy California Environmental Quality Act requirements for the lead State agency. Costs to Federal agencies are expected to total approximately $10,000 total over the next 10 years. Costs to local agencies are expected to total $5,000 to $8,000 total over the next 10 years. However, this does not include the potential cost of developing a multispecies HCP. Costs to private landowners are expected to range from $159,000 to $558,000 total over the next 10 years.

Following the close of the comment period on the draft economic analysis, a final addendum was completed which incorporated public comments on the draft analysis. The values presented above may be an overestimate of the potential economic effects of the designation because the final designation has been reduced to encompass 117 ha (287 acres) versus the 125 ha (308 ac) proposed as critical habitat, a difference of approximately 8 ha (21 ac).

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

In accordance with Executive Order (EO) 12866, this is a significant rule and was reviewed by the Office of Management and Budget (OMB) in accordance with the four criteria discussed below.

(a) In the economic analysis, we determined that this rule will not have an annual economic effect of $100 million or more or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. Chorizanthe robusta var. hartwegii was listed as endangered in February, 1994. Since that time we have not conducted any formal or informal section 7 consultations with other Federal agencies with respect to C. r. var. hartwegii. However, should any agencies be involved in any activities within the area being designated as critical habitat, we will consult with them to ensure that their actions will not jeopardize the continued existence of C. r. var. hartwegii or adversely modify its critical habitat.

Under the Act, Federal agencies shall consult with the Service to ensure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of an endangered or threatened species or result in the destruction or adverse modification of critical habitat. The Act does not impose any restrictions on non-Federal persons unless they are conducting activities funded or otherwise sponsored, authorized, or permitted by a Federal agency ( see Table 2 below). Based upon our knowledge of this species and its ecological needs, and the fact that it is so restricted in its range, we conclude that any Federal action or authorized action that could potentially result in the destruction or adverse modification of critical habitat would currently be considered as “jeopardy” under the Act in areas occupied by the species.

Accordingly, the designation of currently occupied areas as critical habitat is not anticipated to have any incremental impacts on what actions may or may not be conducted by Federal agencies or non-Federal persons that receive Federal authorization or funding beyond the effects resulting from the listing of this species. Non-Federal persons that do not have a Federal “sponsorship” in their actions are not restricted by the designation of critical habitat. The designation of areas as critical habitat where section 7 of the Act consultations would not have occurred but for the critical habitat designation may have impacts on what actions may or may not be conducted by Federal agencies or non-Federal persons who receive Federal authorization or funding that are not attributable to the species listing. These impacts were evaluated in our economic analysis (under section 4 of the Act; see Economic Analysis section of this rule).

(b) This rule will not create inconsistencies with other agencies' actions. As discussed above, Federal agencies have been required to ensure that their actions not jeopardize the continued existence of Chorizanthe robusta var. hartwegii since its listing in 1994. We evaluated the impact of designating areas where section 7 of the Act consultations would not have occurred but for the critical habitat designation in our economic analysis ( see Economic Analysis section of this rule). The prohibition against adverse modification of critical habitat is not expected to impose any additional restrictions to those that currently exist on currently occupied land and will not create inconsistencies with other agencies' actions on unoccupied lands.

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

(d) OMB has determined that this rule may raise novel and legal or policy issues. Therefore, this rule is significant under E.O. 12866 and, as a result, this rule has undergone OMB review.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities ( i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the Regulatory Flexibility Act to require Federal agencies to prepare a certification statement. In this rule, we are certifying that the critical habitat designation for the Chorizanthe robusta var. hartwegii will not have a significant effect on a substantial number of small entities. The following discussion explains our rationale.

Small entities include small organizations, such as independent non-profit organizations, small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents, as well as small businesses. Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we consider the types of activities that might trigger regulatory impacts under this rule, as well as the types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.

To determine if the rule would affect a substantial number of small entities, we consider the number of small entities affected within particular types of economic activities ( e.g., housing development, grazing, oil and gas production, timber harvesting, etc. ). We apply the “substantial number” test individually to each industry to determine if certification is appropriate. While SBREFA does not explicitly define “substantial number,” the Small Business Administration, as well as other Federal agencies, have interpreted this to represent an impact on 20 percent or greater of the number of small entities in any industry. In some circumstances, especially with critical habitat designations of limited extent, we may aggregate across all industries and consider whether the total number of small entities affected is substantial. In estimating the numbers of small entities potentially affected, we also consider whether their activities have any Federal involvement. Designation of critical habitat only affects activities conducted, funded, or permitted by Federal agencies. Some kinds of activities are unlikely to have any Federal involvement and so will not be affected by critical habitat designation. Residential development on private land constitutes the primary activity expected to be impacted by the designation of critical habitat for the Chorizanthe robusta var. hartwegii.

To be conservative ( i.e., more likely overstate impacts than understate them), the economic analysis assumed that all potentially affected parties that may be engaged in development activities within critical habitat are small entities. There are approximately 35 small residential development and construction companies in Santa Cruz County. Because the draft EA estimates that at most three formal consultations could arise involving private entities, the analysis for impacts on small businesses assumes that at most three residential/small business entities may be affected by the designation of critical habitat for the Scotts Valley spineflower in Santa Cruz County over a ten-year period. It's important to note that, to date, we have not conducted any formal consultations for Chorizanthe robusta var. harwegii.

In each year over the ten-year period of analysis, on average, there would likely be less than a single consultation for real estate development projects. As a result, less than one percent of the total number of small residential development and construction companies could be affected annually by the designation of critical habitat for the Choriazanthe robust var. hartwegii. Because the percentage of small businesses that could be affected by this designation is far less than the 20 percent threshold that would be considered “substantial,” the economic analysis concludes that this designation will not affect a substantial number of small entities as a result of the designation of critical habitat for Choriazanthe robust var. hartwegii.

In general, two different mechanisms in section 7 of the Act consultations could lead to additional regulatory requirements for the one small business, on average, that may be required to consult with us each year regarding their project's impact on Chorizanthe robusta var. hartwegii and its habitat. First, if we conclude, in a biological opinion, that a proposed action is likely to jeopardize the continued existence of a species or adversely modify its critical habitat, we can offer “reasonable and prudent alternatives.”

Reasonable and prudent alternatives are alternative actions that can be implemented in a manner consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that would avoid jeopardizing the continued existence of listed species or resulting in adverse modification of critical habitat. A Federal agency and an applicant may elect to implement a reasonable and prudent alternative associated with a biological opinion that has found jeopardy or adverse modification of critical habitat. An agency or applicant could alternatively choose to seek an exemption from the requirements of the Act or proceed without implementing the reasonable and prudent alternative. However, unless an exemption were obtained, the Federal agency or applicant would be at risk of violating section 7(a)(2) of the Act if it chose to proceed without implementing the reasonable and prudent alternatives.

Secondly, if we find that a proposed action is not likely to jeopardize the continued existence of a listed animal species, we may identify reasonable and prudent measures designed to minimize the amount or extent of take and require the Federal agency or applicant to implement such measures through non-discretionary terms and conditions. We may also identify discretionary conservation recommendations designed to minimize or avoid the adverse effects of a proposed action on listed species or critical habitat, help implement recovery plans, or to develop information that could contribute to the recovery of the species.

Based on our experience with consultations pursuant to section 7 of the Act for all listed species, virtually all projects—including those that, in their initial proposed form, would result in jeopardy or adverse modification determinations in section 7 consultations—can be implemented successfully with, at most, the adoption of reasonable and prudent alternatives. These alternatives, by definition, must be economically feasible and within the scope of authority of the Federal agency involved in the consultation. As we have no consultation history for Chorizanthe robusta var. hartwegii, we can only describe the general kinds of actions that may be identified in future reasonable and prudent alternatives. These are based on our understanding of the needs of the species and the threats it faces, as described in the final listing rule and this critical habitat designation.

It is likely that a developer could modify a project to avoid removing standing plants. Based on the types of modifications that have been implemented in the past for plant species, a developer may take such steps as installing fencing or re-aligning the project to avoid sensitive areas. The cost for implementing these modifications for one project is expected to be of the same order of magnitude as the total cost of the consultation process, i.e., approximately $16,000. It should be noted that developers likely would already be required to undertake such modifications due to regulations in California Environmental Quality Act. These modifications are not likely to result in a significant economic impact to project proponents. However, there does remain some concern about secondary impacts to the species. These will need to be addressed before projects are approved.

In summary, we have considered whether this rule would result in a significant economic effect on a substantial number of small entities and have determined, for the above reasons, that it will not affect a substantial number of small entities. Furthermore, we believe that the potential compliance costs for the number of small entities that may be affected by this rule will not be significant. Therefore, we are certifying that the designation of critical habitat for Chorizanthe robusta var. hartwegii will not have a significant economic impact on a substantial number of small entities and a regulatory flexibility analysis is not required.

In the economic analysis, we determined whether designation of critical habitat would cause (a) any effect on the economy of $100 million or more, (b) any increases in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions, or (c) any significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. Refer to the final economic analysis for a discussion of the effects of this determination.

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

(a) This rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. Small governments will be affected only to the extent that they must ensure that any programs involving Federal funds, permits, or other authorized activities must ensure that their actions will not adversely affect the critical habitat.

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

On May 18, 2001, the President issued a Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. There are no energy-related facilities located within designated critical habitat. Although this rule is a significant regulatory action under Executive Order 12866, it is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.

In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of designating critical habitat for Chorizanthe robusta var. hartwegii in a takings implication assessment. The takings implications assessment concludes that this final rule does not pose significant takings implications.

In accordance with Executive Order 13132, the rule does not have significant Federalism effects. A Federalism assessment is not required. As discussed above, the designation of critical habitat in areas currently occupied by Chorizanthe robusta var. hartwegii would have little incremental impact on State and local governments and their activities. The designations may have some benefit to these governments in that the areas essential to the conservation of this species is more clearly defined, and the primary constituent elements of the habitat necessary to the survival of the species are identified. While making this definition and identification does not alter where and what federally sponsored activities may occur, it may assist these local governments in long range planning, rather than waiting for case-by-case section 7 of the Act consultation to occur.

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

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

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

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations With Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a Government-to-Government basis. The designated critical habitat for Chorizanthe robusta var. hartwegii does not contain any Tribal lands or lands that we have identified as impacting Tribal trust resources.

A complete list of all references cited herein, as well as others, is available upon request from the Ventura Fish and Wildlife Office (see ADDRESSES section).

The primary author of this final rule is Constance Rutherford, Ventura Fish and Wildlife Office (see ADDRESSES section).

The Atlantic shark fisheries are managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act. The Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (HMS FMP) is implemented by regulations at 50 CFR part 635.

On November 21, 2000, Southern Offshore Fishing Association and other commercial fishermen and dealers (plaintiffs) and NMFS reached a settlement agreement that prescribed actions to be taken by both parties in order to resolve issues raised in two lawsuits brought against NMFS by the plaintiffs. On December 7, 2000, Judge Steven D. Merryday of the U.S. District Court for the Middle District of Florida entered an order approving the settlement agreement.

The settlement agreement, inter alia, required NMFS to maintain the 1997 commercial LCS quotas and the catch accounting/monitoring procedures pending an independent review of the 1998 LCS stock assessment. In October 2001, NMFS received the complete peer reviews of the 1998 LCS stock assessment. Three of the four reviews found that the scientific conclusions and scientific management recommendations contained in the 1998 LCS stock assessment were not based on scientifically reasonable uses of the appropriate fisheries stock assessment techniques and on the best available (at the time of the 1998 LCS stock assessment) biological and fishery information relating to LCS. Because of this conclusion, NMFS regards the management recommendations of the 1996 stock assessment to be an appropriate basis for any rulemaking, pending completion of a new stock assessment. Thus, having considered the peer review’s overall conclusion, the terms of the settlement agreement, and the recommendations of the 1996 stock assessment, NMFS published an emergency rule (December 28, 2001, 66 FR 67118) to maintain the 1997 commercial LCS quota level until a new LCS stock assessment that employs improved assessment techniques and addresses the recommendations and comments of the peer reviews can be completed and independently peer reviewed.

The 2002 LCS stock evaluation workshop (SEW) will be held June 24-28, 2002, in the NMFS Panama City Laboratory, 3500 Delwood Beach Road, Panama City, Florida 32408. NMFS anticipates that the final LCS SEW report will be complete in August 2002.

Upon completion of the LCS stock assessment and independent review, NMFS intends to implement management measures for LCS by January 1, 2003, through notice and comment rulemaking, based on the additional information to ensure the conservation of LCS while maintaining a sustainable fishery in the long-term.

Additionally, consistent with the court-approved settlement agreement, in the initial emergency rule, NMFS maintained the SCS commercial shark quota at the 1997 level pending a new stock assessment in early 2002. The 2002 SCS stock assessment report is now available, see ADDRESSES or online at http://www.nmfs.noaa.gov/sfa/hmspg.html. NMFS intends to implement management measures for SCS based on the 2002 SCS stock assessment by January 1, 2003, through notice and comment rulemaking.

This emergency rule extension is necessary to manage and conserve LCS based on the best scientific information available, pending completion of a new LCS stock assessment. Without this emergency rule extension, the reduced LCS and SCS commercial quotas of 816 mt dw and 329 mt dw, respectively, adopted in the HMS FMP and based on the 1998 LCS stock assessment, would be in force, inconsistent with the terms of the court-approved settlement agreement.

The 2002 annual landings quotas for LCS and SCS are established at 1,285 mt dw and 1,760 mt dw, respectively. The 2002 quota levels for pelagic, blue, and porbeagle sharks are established at 488 mt dw, 273 mt dw, and 92 mt dw, respectively.

Of the 735.5 mt dw established for the first 2002 semiannual LCS season (December 28, 2001, 66 FR 67118), 722.5 mt dw was taken. NMFS is adding the remaining 13 mt dw to the available quota for the second 2002 semiannual fishing season. As such, the LCS quota for the second 2002 semiannual season is 655.5 mt dw. The SCS second semiannual quota for 2002 is established at 880 mt dw. The second 2002 semiannual quotas for pelagic, blue, and porbeagle sharks are established at 244 mt dw, 136.5 mt dw, and 46 mt dw, respectively.

The second semiannual fishing season of the 2002 fishing year for the commercial fishery for LCS, SCS, and pelagic sharks in the western north Atlantic Ocean, including the Gulf of Mexico and the Caribbean Sea, will open July 1, 2002. To estimate the closure dates of the LCS, NMFS examined the average catch rates for each species group from the first seasons from the years 1999, 2000, and 2001 while also considering the reporting dates of permitted shark dealers. Due to an apparent changes in LCS fishing patterns, NMFS determined that using the most recent year’s LCS catch rates for the second semi-annual fishing season is appropriate for estimating the 2002 LCS second fishing season. Based on 2001 weekly catch rates, between 92 and 102 percent of the available quota would likely be taken between the first and second weeks of September. The second week of September corresponds with the end of the first of two monthly reporting periods for permitted shark dealers. Accordingly, the Assistant Administrator for Fisheries (AA) has determined that the LCS quota for the second 2002 semiannual season will likely be attained by September 15, 2002. Thus, the LCS fishery will close September 15, 2002, at 11:30 p.m. local time.

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

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

This emergency rule extension is published under the authority of the Magnuson-Stevens Fishery Conservation and Management Act. The AA has determined that this action is necessary to ensure that regulations in force are consistent with the court-approved settlement agreement and with the best available science.

NMFS prepared an Environment Assessment for the initial emergency rule that describes the impact on the human environment and found that no significant impact on the human environment would result. This emergency rule extension is of limited duration. Additional details concerning the basis for this action are contained in the initial emergency rule and are not repeated here. NMFS intends to conduct notice and comment rulemaking to have new management measures in place, based on the 2002 LCS and SCS stock assessments and LCS peer review, by January 1, 2003.

NMFS also prepared a Regulatory Impact Review for this action which assesses the economic costs and benefits of the action. Additional details concerning the basis for this action are contained in the initial emergency rule and are not repeated here.

This emergency rule extension to establish the 2002 landings quotas and other shark management actions has been determined to be not significant for the purposes of Executive Order 12866.

Additionally, the ancillary action announcing the fishing season is taken under 50 CFR 635.27(b) and is exempt from review under Executive Order 12866.

Because no general notice of proposed rulemaking is required to be published in the Federal Register for this emergency rule extension by 5 U.S.C. 553 or by any other law, the analytical requirements of the Regulatory Flexibility Act do not apply; thus, no Regulatory Flexibility Analysis was prepared.

The AA finds that there is good cause to waive the requirement to provide prior notice and an opportunity for public comment pursuant to authority set forth at 5 U.S.C. 553(b)(B). Comment on these management measures were requested in the initial emergency rule published on December 28, 2001 (66 FR 67118); therefore, the agency has the authority to extend the emergency rule for another 180 days. Two comments were received. The first comment expressed concern that the emergency action does not allow for increases in harvest levels for the recreational shark fishery commensurate with increases for the commercial shark fishery. NMFS intends to review the recreational shark fishing measures during the notice and comment rulemaking after the 2002 LCS stock assessment and peer review. The second comment raised procedural and legal concerns regarding the adequacy and appropriateness of the independent peer reviews, initial emergency rule, and supporting environmental assessment. Some of these concerns are currently the subject of ongoing litigation and will be resolved by a court. To the extent possible, NMFS intends to address additional concerns in the 2002 LCS SEW and during the notice and comment rulemaking after the 2002 LCS stock assessment and peer review.

If these regulations are not in effect then more restrictive management measures (e.g. lower annual landings quotas and measures to count dead discards against that lower quota) that could significantly impact the fishery, and that currently lack an adequate scientific basis, would be in place. The public will have additional opportunities to comment on these or similar measures during the notice and comment rulemaking subsequent to the completion of the 2002 LCS stock assessment and peer review.