The FAA has received several reports of findings of cracked or broken angles and splice plates on floor beam attachments to the lower door jamb of the main cargo door area on certain McDonnell Douglas Model DC-8-21, -31, -32, -33, -41, -42, and -43 airplanes; and Model DC-8-50, -60, and -70 series airplanes. One report revealed that, during a routine C-check on a Model DC-8-62 airplane, fractures were found in 9 of 11 of the floor beam attachments to the lower door jamb. Findings indicate that such fractures could be due to factors associated with flight operations and/or loading operations on the ground. Such conditions, if not corrected, could cause failure of such floor beam attachments during ground or flight operations. This could cause damage to the floor structure and consequent jamming of the control cables, and result in loss of controllability of the airplane in flight.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design, this AD is being issued to prevent failure of the floor beam attachments to the lower door jamb. Such failure could cause damage to the floor structure and consequent jamming of the flight control cables, and result in loss of controllability of the airplane in flight. This AD requires gaining access to the floor beam attachments to the lower door jamb within the main cargo door area; and performing repetitive inspections to detect cracking or damage of such attachments, including splice plates, angles, and clips. If any cracking or damage is found, this AD also requires extending the area of inspection 60 inches forward and aft of the main cargo door area, and replacing any cracked or damaged part with a new part. Figure 1 of Appendix 1 of this AD identifies the inspection area and parts to be inspected.

This AD also requires operators to report the results of any detailed inspection required by paragraph (a) of this AD to the FAA.

This is considered to be interim action until final action is identified, at which time the FAA may consider further rulemaking. Because the cause of the addressed cracking or damage is not currently known, the intent of the required inspection report is to enable the FAA to determine how widespread such cracking or damage may be in the affected fleet. Based on the results of this report, further corrective action may be warranted.

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

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

Submit comments using the following format:

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-130-AD.” The postcard will be date stamped and returned to the commenter.

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

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

On May 9, 2002, the FAA superseded EAD 2002-08-53, issued April 22, 2002, with EAD 2002-09-51, issued May 9, 2002. EAD 2002-08-53 required, before further flight, cleaning and inspecting certain T/R grips and removing each unairworthy grip not made of steel. EAD 2002-09-51 retains those requirements and in addition corrects a statement in the preamble that T/R grip, part number (P/N) 205-011-711-101, has an unlimited life. That T/R grip has a life limit of 2,500 hours time-in-service. Also, EAD 2002-09-51 adds the Bell Model 204B helicopter to the applicability and clarifies the inspection requirements by specifying that the magnet be placed on the T/R grip body and not on the steel bushing or steel interior liner to determine if the grip is made of steel. EAD 2002-08-53, was prompted by reports that T/R grips, P/N 204-011-728-019, required to be removed from service by AD 73-17-04 (38 FR 22223, August 17, 1973), were being re-marked as P/N 205-011-711-101 and installed on certain Bell model helicopters. EAD 2002-09-51 was prompted by information from the manufacturer stating that the Bell Model 204B helicopter should be added to the applicability because the unairworthy grips could be installed on that model. This condition, if not detected, could result in failure of the T/R grip and subsequent loss of helicopter control.

This unsafe condition is likely to exist or develop on other Bell model helicopters of the same type design. Therefore, this AD requires cleaning and inspecting the T/R grip to determine if the grip is made of steel by placing a magnet on the exterior of the main body of the T/R grip. If the T/R grip is not made of steel, it must be removed from service. The short compliance time involved is required because the previously described critical unsafe condition can adversely affect the controllability of the helicopter. Therefore, this AD requires, before further flight, that you clean and inspect the T/R grip to determine if the grip is made of steel and remove any grip that is not made of steel, and this AD must be issued immediately.

Since it was found that immediate corrective action was required, notice and opportunity for prior public comment thereon were impracticable and contrary to the public interest, and good cause existed to make the AD effective immediately by individual letters issued on May 9, 2002, to all known U.S. owners and operators of Bell Model 204B, 205A, A-1, and B helicopters. These conditions still exist, and the AD is hereby published in the Federal Register as an amendment to 14 CFR 39.13 to make it effective to all persons.

The FAA estimates that this AD will affect 269 helicopters of U.S. registry, that the required actions will take approximately 2 work hours per helicopter to accomplish, and that the average labor rate is $60 per work hour. Required parts will cost approximately $4864 per helicopter. Based on these figures, the FAA estimates the total cost impact of the AD on U.S. operators will be $1,340,696 to clean, inspect, and replace one T/R grip on each helicopter in the entire fleet.

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

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

Commenters wishing the FAA to acknowledge receipt of their mailed comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2002-SW-24-AD.” The postcard will be date stamped and returned to the commenter.

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

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

Airworthiness Directive (AD) 2002-12-13, amendment 39-12785, applicable to all Boeing Model 727 series airplanes, was published in the Federal Register on June 26, 2002 (67 FR 42985). That AD requires a review of maintenance records or a one-time test to determine if elevator hinge support ribs on the trailing edge of the horizontal stabilizer are made from a certain material, and follow-on repetitive inspections for corrosion or cracking of the elevator hinge support ribs, if necessary. For airplanes with the affected ribs installed, this AD eventually requires replacement of all affected ribs with new, improved ribs.

As published, paragraph (h) of that AD contained an incorrect address for obtaining copies of service information. Paragraph (h) of that AD identifies Airbus Industrie, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France, as the appropriate address for obtaining copies of service information. However, the correct address is Boeing Commercial Airplane Group, P.O. Box 3707, Seattle, Washington 98124-2207.

Since no other part of the regulatory information has been changed, the final rule is not being republished in the Federal Register .

The effective date of this AD remains July 31, 2002.

On August 17, 2001, the FAA proposed to amend Title 14 Code of Federal Regulations, part 71 (14 CFR part 71) by revising Class D and Class E airspace at Medford, OR, (66 FR 43132). In 1992 the official name of the Medford Airport was changed from Medford-Jackson County Airport to Rogue Valley International-Medford Airport. This name change was reflected in a number of publications, but not officially referenced in 14 CFR 71.1. This rule corrects the legal description of airspaces associated with the airport to reflect its current name. Additionally, this rule revises the Class E airspace to provide adequate controlled airspace for aircraft executing the new RNAV (GPS) RWY 14 SIAP. Additional Class E airspace, 700-foot and 1,200 foot controlled airspace, is required to contain aircraft within controlled airspace which are executing IFR approaches to the airport. The intended effort of this rule is designed to revise the airspace's legal descriptions, provide safe and efficient use of the navigable airspace, and enhance/promote safe flight operations under Instrument Flight Rules (IFR) and Visual Flight Rules (VFR) at Rogue Valley International-Medford Airport.

Interested parties were not invited to participate in the rule making proceedings regarding the revision to the Class D airspace or the Class E airspace designated as a surface area, as this is an action to correct official documents resulting from the legal name change of the airport. This is considered an insignificant modification to the airspace description as only the name of the associated airport is changed. The dimensions and effective hours of the Class D airspace Class E 2 surface area were not revised.

This amendment to 14 CFR part 71 revises the Class D surface area and Class E airspace legal descriptions for Medford, OR. This rule revises the airspace legal descriptions to reflect the current name designation of the Rogue Valley International-Medford Airport, Medford, OR, and provides safe and efficient use of the navigable airspace. It will promote safe flight operations under Instrument Flight Rules (IFR) and Visual Flight Rules (VFR) at Rogue Valley International-Medford Airport. Additionally, this rule will enhance flight operations during the transition between the terminal and en route phase of flight.

The airspace areas will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. Class D surface airspace areas are published in Paragraph 5000, Class E Airspace areas designated as surface areas for an airport are published in paragraph 6002, Class E airspace areas designated as extensions to Class D or Class E surface areas are published in Paragraph 6004, and Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in Paragraph 6005, of FAA Order 7400.9J dated August 31, 2001, and effective September 16, 2001, which is incorporated by reference in 14 CFR 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in the Order.

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

On May 13, 2002, a proposal to revise part 71 of the Federal Aviation Regulations (14 CFR part 71) to add to the Class E airspace at Kodiak, AK, was published in the Federal Register (67 FR 31994-31995). Due to the development of four new SIAPs; Instrument Landing System Y (ILS Y) Runway 25, Very High Frequency Omni-navigational Range or Tactical Air Navigation Y (VOR or TACAN Y) Runway 25, Non-directional Beacon (NDB) Runway 25, Area Navigation (Global Positioning System) (RNAV GPS) Runway 25, additional Class E airspace is necessary to ensure that IFR operations remain within controlled airspace at the Kodiak, AK Airport. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments have been received, thus, the rule is adopted as written.

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9J. Airspace Designations and Reporting Points, dated August 31, 2001 and effective September 16, 2001 which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be revised subsequently in the Order.

This revision to 14 CFR part 71 adds to the Class E airspace at Kodiak, Alaska. Additional Class E airspace is being created to contain aircraft executing the four new SIAPs and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for IFR operations at Kodiak Airport, Kodiak, Alaska.

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

On April 23, 2002, a proposal to revise part 71 of the Federal Aviation Regulations (14 CFR part 71) to add to the Class E airspace at Nuiqsut, AK, was published in the Federal Register (67 FR 19710-19711). Due to the development of two new SIAPs; Area Navigation-Global Positioning System (RNAV GPS) Runway 04, and RNAV (GPS) Runway 22, additional Class E airspace is necessary to ensure that IFR operations remain within controlled airspace at the Nuiqsut, AK Airport. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments have been received, thus, the rule is adopted as written.

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9J. Airspace Designations and Reporting Points, dated August 31, 2001 and effective September 16, 2001 which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be revised subsequently in the Order.

This revision to 14 CFR part 71 adds to the Class E airspace at Nuiqsut, Alaska. Additional Class E airspace is being created to contain aircraft executing the RNAV (GPS) Runway 04 and RNAV (GPS) Runway 22 SIAPs and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for IFR operations at Nuiqsut Airport, Nuiqsut, Alaska.

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

On April 23, 2002, a proposal to revise part 71 of the Federal Aviation Regulations (14 CFR part 71) to add to the Class E airspace at Buckland, AK, was published in the Federal Register (67 FR 19711-19713). Due to the development of three new SIAPs, Area Navigation-Global Positioning System (RNAV GPS) Runway 28, Non-directional Radio Beacon/Distance Measuring Equipment (NDB/DME) Runway 10, and NDB/DME Runway 28, additional Class E airspace is necessary to ensure that IFR operations remain within controlled airspace at the Buckland, AK Airport. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments have been received, thus, the rule is adopted as written.

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9J. Airspace Designations and Reporting Points, dated August 31, 2001 and effective September 16, 2001 which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be revised subsequently in the Order.

This revision to 14 CFR part 71 adds to the Class E airspace at Buckland, Alaska. Additional Class E airspace is being created to contain aircraft executing the RNAV (GPS) Runway 28, NDB/DME Runway 28 and NDB/DME Runway 10 SIAPs and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for IFR operations at Buckland Airport, Buckland, Alaska.

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

Although this action is a final rule, which involves the amendment of the Class E airspace at Dunkirk, NY, by revoking that airspace designated for Angola Airport, and was not preceded by notice and public procedure, comments are invited on the rule. This rule will become effective on the date specified in the DATES section. However, after the review of any comments and, if the FAA finds that further changes are appropriate, it will initiate rulemaking proceeding to extend the effective date or to amend the regulation.

Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in evaluating the effects of the rule, and in determining whether additional rulemaking is required. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the rule which might suggest the need to modify the rule.

This amendment to Part 71 of the Federal Aviation Regulations (14 CFR part 71) changes the description of the Class E airspace at Dunkirk, NY, by revoking that airspace designated for Angola Airport. The Angola airport has been closed and abandoned for aeronautical use. As a result the Angola Airport Class E airspace is no longer required for air safety. Class E airspace designations for airspace extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9J, dated August 31, 2001, and effective September 16, 2001, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

Under the circumstances presented, the FAA concludes that there is a need to amend the description of the Class E airspace area at Dunkirk, NY to ensure public access to that airspace designated for the Angola Airport. Accordingly, since this action merely involves a change in the legal description of the Dunkirk, NY, Class E airspace, revoking that airspace designated for the Angola airport, notice and public procedure under 5 U.S.C. 553(b) are unnecessary. Furthermore, in order to incorporate this change into the next sectional chart and avoid confusion on the part of pilots, I find that good cause exists, pursuant to 5 U.S.C 553(d), for making this amendment effective as soon as possible.

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

The fishery for shrimp in the Gulf EEZ is managed under the Fishery Management Plan for the Shrimp Fishery of the Gulf of Mexico (FMP). The FMP was prepared by the Gulf of Mexico Fishery Management Council (Council), approved by NMFS, and implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

NMFS approved Amendment 11 on October 17, 2001. On February 25, 2002, NMFS published a proposed rule to implement Amendment 11 and requested comments on the proposed rule through April 11, 2002 (67 FR 8503). The rationale for the measures in Amendment 11 is provided in the preamble to the proposed rule and is not repeated here.

Comments received during public comment periods for the Amendment and the proposed rule are considered together in this final rule. Comments opposing the permitting system included a minority report submitted by two members of the Council, and five letters from industry representatives (two of which were submitted during both public comment periods). Comments supporting the permitting system included letters from three environmental organizations (one organization submitted a comment under each comment period). Additionally, NMFS received several hundred form letters stating general support for the permitting action.

Comment 1: Opposing views were received regarding the need for a Federal shrimp vessel permit system as a mechanism to collect information regarding the shrimp fishery. Two individuals and one organization opposed the proposed permitting system noting that information was available through existing state and Federal programs to determine vessels and effort in the exclusive economic zone (EEZ) of the Gulf of Mexico. Specific issues identified in these letters are addressed as separate comments herein.

In contrast, three environmental organizations submitted comments and several hundred form letters were received stating general support for the permitting action as a means to gather information concerning bycatch in the fishery and as an enforcement tool that would enhance sea turtle conservation. Two of the environmental groups provided detailed comment in support of their position, noting that the existing Federal records include information compiled by port agents over several years, which may not be representative for the current year. Also, state licensing files do not necessarily distinguish between vessels that fish in state and Federal waters and when compiled among states would include duplicate records for those vessels licensed in multiple states.

Response: Data collection and identification systems do exist through either state or Federal systems, but none is comprehensive or specifically identifies shrimp fishing vessels that are actively working in the EEZ. The NMFS-maintained Shrimp Landings File (SLF) represents landings by individual shrimp vessels over the course of a year, but does not necessarily indicate whether the effort occurred in state or Federal waters. The purpose of the NMFS Vessel Operating Units File (VOUF) is to maintain a record of vessel characteristics (i.e., length, age, horsepower, etc.), for all active shrimp fishing vessels; this file may include several vessels that are not currently active in the fishery. Thus, the VOUF contains a list of all vessels found in the SLF, plus vessels fishing in the inshore areas, and vessels suspected to still be active in the fishery. Neither of these data files provides an indication of whether the vessels fish in the EEZ. Similarly, state licensing files or trip tickets may indicate active fishing vessels, but these files will not provide information on whether a vessel fishes in state or Federal waters, or both. In some instances, these licenses are not specific to a fishery, and, thus, they do not readily identify shrimp fishing vessels as opposed to vessels operating in other fisheries. Trip tickets are not uniform across the Gulf states, and the GulfFIN clearinghouse that will standardize this information is still in development. Additionally, these data collection systems, designed for different purposes, are not standardized as to the information that is collected. The immediate benefit of a Federal permit system is to accurately identify the existing, active (on an annual basis) universe of shrimp fishing vessels in the Gulf of Mexico EEZ.

A Federal permit system that creates a complete listing of all active vessels fishing in the EEZ is a prerequisite tool for any statistically robust data collection program intended to canvass or randomly sample the activities of the shrimp fishery in the EEZ. Previous data collection programs have been hampered by the inability to specifically identify the universe of vessels fishing for shrimp in the Gulf EEZ. Without this information, sampling programs have depended on non-random sampling. A more robust analysis of the shrimp fishery is only possible through stratified random sampling of the existing fleet, and that kind of sampling is only possible where the specific vessels are readily identifiable.

The ability to sanction permits is an enforcement tool and could apply for violations of certain statutes and where there is an unpaid and overdue civil penalty or criminal fine imposed under any marine resource law administered by the Secretary of Commerce. Additional details concerning this specific issue are addressed in the response to Comment 11.

Comment 2: The Secretary of Commerce has the authority to implement measures that are needed to collect data under section 401 of the Magnuson-Stevens Act. Two comments suggested that a Gulf-wide vessel registration system be implemented under the auspices of the Gulf States Marine Fisheries Commission (Commission).

Response: In regards to the vessel registration system proposal required in Section 401 of the Magnuson-Stevens Act, NMFS proposed utilizing the Vessel Identification System that is under development by the US Coast Guard (USCG). However, the USCG is still reviewing options to implement this system, and its implementation is not anticipated in the near future. Trip tickets are not uniform across the Gulf states, and the GulfFIN clearinghouse under development by the Commission will provide a standardization of this information. This program will greatly enhance the overall data collection systems for Gulf of Mexico fisheries, but it will not identify the number of shrimp vessels fishing in the EEZ.

Comment 3: The shrimp fishery has been participating in a data collection program for several years. The Congressionally mandated Incidental Harvest Research Program collected substantial amounts of information regarding the characterization of the catch and bycatch species found in shrimp trawls. That program led to additional data collection efforts currently underway using observers and logbooks to document the port of departure, fishing time, catch, and the location of fishing effort.

Response: The industry contributions to collecting data on the catch and effort in the shrimp fishery were an integral part of the development of Council actions to implement Amendment 9 to the Gulf shrimp FMP. Continuing data collection efforts will benefit additional management decisions. However, without a method to identify the universe of vessels active in the fishery, these programs have relied on voluntary participation by the shrimp fleet. The results of NMFS' 1992-1996 Incidental Harvest Research Program, as well as the Council's subsequent actions implemented in Amendment 9 that were based on the results of that program, have been questioned because the sampling was not conducted through a stratified random sampling effort across the various strata of vessels. Similarly, during the summer 1998 Red Snapper/Shrimp Research Program, the Southeast Fisheries Science Center attempted to implement a trial logbook program. That attempt was only partially successful because it failed to reach many of the intended participants in a timely manner. These programs used the available information systems to identify potential participants, but even in combination, these other information systems do not directly provide current information on the number and location of shrimp fishing vessels operating in the EEZ. A major benefit of a Federal permit system is in providing opportunity to design statistically robust data collection programs to benefit management of the fishery resources of the region.

Comment 4: Amendment 11 does not state specifically what data are missing resulting in the need for a new data collection program. Data on fishing effort and catch are already collected by NMFS port agents and state agencies.

Response: Amendment 11 does not propose to implement a biological or fishery data collection system; it proposes to implement a vessel permitting system, which by itself is a data collection tool to identify those shrimp vessels actively fishing in the EEZ each year. With a permit system as a source to identify a representative stratified random sample of shrimp vessels, research to collect biological, fishery, social, and economic data on the fishery could be accomplished using observers, logbooks, vessel monitoring systems or other data collection methods. Once the Agency has more accurately determined the number of fishery participants through the permit system, then appropriate methods of data collection will be determined. Anticipated improvements from the permitting and subsequent sampling procedures would include more precise red snapper bycatch estimations and more accurate determinations of economic and community impacts. Information collected under such future programs would aid in the formulation of sound management measures for the shrimp fishery and those finfish fisheries that are affected by bycatch and bycatch mortality arising from the shrimp fishery. See also response to comment 10.

Comment 5: Amendment 11 does not state what supporting documents will be required to obtain a Federal fishing permit. There is no discussion of the conditions by which NMFS could reject the issuance or renewal of such a permit. Failure or delay in issuing or renewing a Federal permit in a timely manner because applications are incomplete or have a lack of supporting documentation could have a substantial economic impact on the vessel owner. Automatic renewal of permits should be issued with expiration dates spread evenly over the year, rather than with a single expiration date, to avoid administrative delays. Electronic (internet-based) permitting and payment of permitting fees via credit cards would additionally speed up the process.

Response: The conditions for obtaining and renewing a shrimp vessel permit, including the time frames for issuance, are a NMFS administrative procedure, and the Councils usually defer specific application procedures to NMFS. The proposed application procedures and requirements were described in the proposed rule (67 FR 8503, February 25, 2002). Current regulations (50 CFR 622.4(b)(3) and 50 CFR 622.4(h)) do provide the information that needs to be submitted to obtain and renew vessel permits and address the timing for applying and renewing permits. The procedures for shrimp permit applications will be based on these existing regulations.

Regarding the comments on internet-based permit issuance and fee payment, NMFS currently is developing the resources and technological capability for these opportunities. NMFS is actively examining the feasibility of changing to such a system to improve customer service without adversely affecting the accuracy and usefulness of the permit database.

Comment 6: Given that the permits would be non-transferrable, what would happen if the owner sold his permitted vessel?

Response: Open-access permits, such as the shrimp vessel permits, do not require transfer provisions. Once the vessel transaction is complete, the new owner may simply apply to obtain a new permit without relying on the more lengthy permit transfer process. As a result, the rule does not provide for permit transfers.

Comment 7: Without qualifying criteria the number of permits issued may be inflated due to speculation or part-time fishing in the EEZ, thus rendering the database unusable as a measure of effort.

Response: The database generated by the issuance of vessel permits is not intended as a direct measure of effort. The database will provide an enumeration of the vessels that either fish or have the intent to fish in the EEZ on an annual basis. However, by using the identification information from a permit system, those vessels can then be contacted to gather the information necessary to estimate fishing effort. (See also the responses to Comments 3 and 4).

Comment 8: National standard 5 states in part that “conservation and management measures shall, where practicable, consider efficiency in the utilization of fishery resources...”. Efficiency in the utilization of fishery resources is enhanced through minimizing the regulatory burden on the harvesters. This measure will be costly to implement, more complex than the existing system, and will result in less rather than more efficiency.

Response: NMFS disagrees that this would be a complex or costly regulatory burden. This amendment includes a collection-of-information requirement subject to the Paperwork Reduction Act; namely, a requirement to submit an application for a Gulf shrimp commercial vessel permit. In addition, NMFS revised the Multiple Fishery Vessel Application (Application) that will be used for the Gulf shrimp permit and is used for other fishery permits issued by the NMFS Southeast Regional Office. NMFS added data fields for the applicant's birth date, street address, and county; vessel net tonnage; vessel gross tonnage; and vessel hull identification number. The collection of this information has been approved by the Office of Management and Budget, OMB control number 0648-0205. The public reporting burden for the collection of information related to the Gulf shrimp permit application and the additional data elements on the Application are estimated to average 20 minutes per response. This estimate of the public reporting burden includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collections of information.

Comment 9: National standard 6 states that “conservation and management measures shall take into account and allow for variations among, and contingencies in, fishery, fishery resources, and catches.” Vessel permits are almost exclusively used as fishery management tools in fisheries where the intent is to control fishing effort to protect and rebuild stocks. This is not the case in the shrimp fishery. Shrimping in the EEZ is not a threat to shrimp stocks, and good fishery management practices do not require the level of effort scrutiny needed to manage other fisheries.

Response: Mandatory vessel permitting proved to be an effective way of obtaining information on the number of potentially active vessels and participants in other commercial and for-hire fisheries operating in the Gulf, including the reef fish and coastal migratory pelagics fisheries. These data combined with logbook reporting, observer reports, and other surveys provided managers with essential information on effort, catch, bycatch, and other important parameters regarding these fisheries. Having a known universe of vessels operating in the Gulf shrimp fishery will help provide the same opportunities for scientists and managers to collect data on effort, catch, bycatch, and other important parameters of both targeted shrimp stocks, as well as bycatch species that may or may not be under separate management regimes.

Comment 10: National standard 7 states that “conservation and management measures shall, where practicable, minimize cost and avoid unnecessary duplication.” The estimated cost for implementation of shrimp permits is an unjustified burden on the taxpayers of this country and to the shrimping industry. The current data collection systems contain the information necessary to manage the fishery; therefore an additional permitting requirement will increase cost and create unnecessary duplication.

Response: Amendment 11 states that the public burden associated with vessel permits and data collection are estimated to be approximately $350,000 per year, based on an anticipated issuance of 7,000 permits at a cost of $50 per permit. NMFS costs associated with the issuance of these permits is estimated to be $350,000. The funds generated from permit fees are not retained by NMFS and revert to the General Treasury, thus offsetting any public (taxpayer) burden. There are no expected cost increases to be borne by state and other local governments from implementing a vessel permitting system for the shrimp fishery.

NMFS has assessed both the costs and benefits of the intended regulations and has determined that this action is justified. The permit cost of $50 per application, which represents the cost to the agency in processing and issuing the permit, represents less than one percent of the profits realized by the average Gulf of Mexico shrimp vessel, and burden time (estimated at 20 minutes per permit application) is minimal. The increased scientific information that can be collected by using the permit system to randomly sample the shrimp fleet will provide a greater benefit to the various Gulf of Mexico fisheries as a whole than the cost to develop the permit system. NMFS also does not believe that the permit system is duplicative and addressed its rationale for that finding in the Response to Comment 1.

Comment 11: National standard 8 states that “Conservation and management measures shall....take into account the importance of fishery resources to fishing communities in order to (a) provide for the sustained participation of such communities, and (b) to the extent practicable, minimize adverse economic impacts on such communities.” The shrimp fishery in the Gulf of Mexico is the most valuable fishery and involves the largest number of participants. Consequently, more people are affected by regulations on this fishery. Because of the many regulations applicable to this fishery under both the Endangered Species Act (ESA) and the Magnuson-Stevens Act (turtle-excluder-devices (TEDs), BRDs, closed areas, closed seasons, etc.), violations are proportionally more costly to shrimp vessel owners as opposed to other finfish fisheries. Additionally, the Gulf shrimp fishery consists of a large number of vessels that are not owner-operated. Given that an owner has little control over the operator while the vessel is at sea, owners could be economically ruined by operators who may violate regulations leading to a permit sanction.

Response: Participants in other fisheries are subject to requirements under more than one statute, such as the Magnuson-Stevens Act, Endangered Species Act, and/or the Marine Mammal Protection Act. For example, summer flounder fishermen are similarly required to use TEDs. As such, participants in the

Gulf shrimp fishery will not be subject to greater or disproportionate costs as a result of regulatory violations as compared to other fisheries. So long as permit holders remain in compliance with applicable law, they will not be subject to any additional economic burden. NMFS cannot insulate owners from liability, as the Magnuson-Stevens Act explicitly establishes liability for any person, including owners and operators of vessels involved in fisheries violations, as well as liability for the vessel, its cargo, and appurtenances.

Royal Red Shrimp Traps

Comment 1: One comment suggested that NMFS should more carefully consider alternative gears to trawls for shrimp fishing, noting that trawls are identified as some of the most destructive fishing gear currently in use. Given that the royal red shrimp fishery is prosecuted in deep water, and that deep water corals have long life spans and infrequent recruitment, trawls could severely damage deep water reefs. The value of an alternative to trawls would depend on the intensity of fishing in a particular area, but should be considered.

Response: At this time, NMFS agrees with the Council's position that the prohibition of traps in the royal red shrimp fishery is beneficial. Allowing the use of traps could result in gear conflicts and entanglements that could compromise vessel safety considering the depth of water where this fishery is prosecuted. Additionally, the existing trawl fishery has been harvesting royal red shrimp at a level near maximum-sustainable-yield for several years. The addition of a new gear and additional harvesting efforts could lead to overfishing. NMFS recognizes the potential impacts to habitat from trawling operations, and should the Council choose to change allowable gears in this fishery, at a later time, NMFS would give careful consideration to the option.

On October 17, 2001, NMFS approved Amendment 11 based on a determination that it was consistent with the national standards of the Magnuson-Stevens Act and other applicable law. In making that determination, NMFS took into account the data, views, and comments received during the comment period on Amendment 11.

This final rule has been determined to be significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that the proposed rule for this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule. Comments were received regarding the economic impacts (see Comments 8, 10, and 11) but did not alter the determination and appropriateness of the certification. As a result, no regulatory flexibility analysis was prepared.

Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection of information displays a currently valid Office of Management and Budget (OMB) control number.

This rule contains collection-of-information requirements subject to the PRA--namely, a requirement to submit an application for a Gulf shrimp commercial vessel permit and a vessel identification requirement. In addition, NMFS is revising the Multiple Fishery Vessel Application (Application) that will be used for the Gulf shrimp permit and is used for other fishery permits issued by the NMFS Southeast Regional Office. NMFS is adding data fields for the applicant's birth date, street address, and county; vessel net tonnage; vessel gross tonnage, and vessel hull identification number. The permit application requirement and the new application data field requirements have been approved by OMB, OMB control number 0648-0205. The public reporting burden for the collection of information related to the Gulf shrimp permit application and the additional data elements on the Application is estimated to average 20 minutes per response. This estimate of the public reporting burden includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collections of information. The vessel identification requirement was previously approved by OMB under control number 0648-0358, with an estimated response time of 45 minutes total per vessel. Send comments regarding these burden estimates or any other aspect of the collection-of-information requirements, including suggestions for reducing the burden, to NMFS and to OMB (see ADDRESSES ).

Blue Ridge Pharmaceuticals, Inc., 4249-105 Piedmont Pkwy., Greensboro, NC 27410, has informed FDA of a change of name to IDEXX Pharmaceuticals, Inc. Accordingly, the agency is amending the regulations in 21 CFR 510.600(c)(1) and (c)(2) to reflect the change.

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

DEC International, Inc., 1919 South Stoughton Rd., P.O. Box 8050, Madison WI 53708-8050, has informed FDA that it has transferred ownership of, and all rights and interests in, NADA 141-200 for EAZI-BREED CIDR Progesterone Intravaginal Inserts to Pharmacia & Upjohn Co., 7000 Portage Rd., Kalamazoo, MI 49001-0199. Accordingly, the agency is amending the regulations in 21 CFR 529.1940 to reflect the transfer of ownership.

Following this change of sponsorship, DEC International, Inc., is no longer the sponsor of any approved application. Accordingly, 21 CFR 510.600(c) is being amended to remove the entries for DEC International, Inc.

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

Equi Aid Products, Inc., 1517 West Knudsen Dr., Phoenix, AZ 85027, has informed FDA that it has transferred ownership of, and all rights and interest in, ANADA 200-168 for CW 48 (pyrantel tartrate) Type A medicated article to Farnam Companies, Inc., 301 West Osborn, Phoenix, AZ 85013-3928. Accordingly, the agency is amending the regulations in § 558.485 (21 CFR 558.485) to reflect the transfer of ownership.

Following this change of sponsorship, Equi Aid Products, Inc., is no longer the sponsor of any approved application. Accordingly, § 510.600(c) is amended to remove the entries for Equi Aid Products, Inc.

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

Pennfield Oil Co., 14040 Industrial Rd., Omaha, NE 68137, filed a supplement to ANADA 200-026 that provides for use of PENNOX 343 (oxytetracycline HCl) soluble powder for making medicated drinking water for the treatment of various bacterial diseases of livestock. The supplemental ANADA provides for a zero-day preslaughter withdrawal time after the use of the product in the drinking water of swine. The supplemental ANADA is approved as of April 10, 2002, and 21 CFR 520.1660d is amended to reflect the approval. The basis of approval is discussed in the freedom of information summary.

In accordance with the freedom of information provisions of 21 CFR part 20 and 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

The agency had determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

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

Phibro Animal Health, 710 Rte. 46 East, suite 401, Fairfield, NJ 07004, filed supplements to NADA 8-804 for TM-50, TM-50D, TM-100, and TM-100D (oxytetracycline) Type A medicated articles and NADA 95-143 for OXTC (oxytetracycline) Type A medicated articles used for making medicated feeds for the treatment of various bacterial diseases of livestock. The supplemental NADAs provide for a zero-day withdrawal time prior to slaughter when Type C medicated feeds containing oxytetracycline are fed continuously to swine at a dosage of 10 milligrams per pound (mg/lb) of body weight for up to 14 days. The supplemental NADAs are approved as of April 29, 2002, and the regulations are amended in 21 CFR 558.450 to reflect the approval. The basis of approval is discussed in the freedom of information summaries.

In accordance with the freedom of information provisions of 21 CFR part 20 and 514.11(e)(2)(ii), summaries of safety and effectiveness data and information submitted to support approval of these applications may be seen in the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

The agency has determined under 21 CFR 25.33(a)(1) that these actions are of a type that do not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

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

Apublic meeting concerning initiatives toward international maritime security was held on January 3, 2002 (see Federal Register of December 14, 2001 [66 FR 64898]), at Coast Guard Headquarters, Washington, DC. A workshop concerning National Maritime Security was held on January 28-29, 2002 (see Federal Register of January 16, 2002 [66 FR 2271]), in Washington, DC, to discuss issues of domestic maritime security.

We are not receiving comments in response to this document because it simply clarifies existing requirements. You may see materials from the meeting and workshop, including our responses to comments we did receive, on the Internet at http://dms.dot.gov under docket number USCG-2002-11137.

On September 11, 2001, acts of terrorism were committed against the United States in New York, Virginia, and Pennsylvania. In light of these attacks, the security of all modes of transportation is being reevaluated. Under the provisions of Title 33, Code of Federal Regulations (33 CFR), parts 6 and 125, the Coast Guard has the authority and the rules in place to require identification credentials for access to waterfront facilities and to port and harbor areas, including vessels and harbor craft in them. This notice serves to announce a clarification of these rules and serves to direct the public's attention to 33 CFR 125.09(f) authorizing the Commandant of the Coast Guard to require approved identification credentials.

In the week after September 11, the Secretary of the Department of Transportation (SECDOT) established the National Infrastructure Security Committee (NISC) to evaluate security in the surface modes of transportation and to provide recommendations for improvement. To reach that goal, the NISC created six “Direct-Action Groups” (DAGs) to generally examine each mode of transportation; and, pursuant to their initial studies, it established a seventh DAG, the Credentialing Direct Action Group (CDAG), to study the issue of a National Transportation Workers' Identification Card (TWIC) for all transportation workers and other persons who require access to secure areas at transportation facilities. Pending legislation has pointed to a need for such a card. Further, the Transportation Security Administration (TSA), newly formed within the Department of Transportation (DOT) itself, formed “Go-Teams”—short-term, highly focused working groups that are concentrating on various specific technologies and credentialing issues, such as card architecture, biometrics, and “smart cards.” More information about credentialing is available on the website of TSA at http://www.tsa.gov/ .

The goal of the CDAG is to fashion a nationwide solution to the problem of identifying workers that verifies their identity, validates their background information, assists transportation facilities in managing their security risks, and accounts for access of authorized personnel to transportation facilities and activities. The CDAG is seeking to identify a solution that would—

• Be fully inter-modal;

• Be built on existing technology, as well as on governmental and commercial business processes and infrastructure, as much as possible;

• Minimize the need for workers and other people to carry multiple ID cards;

• Ensure due protection of a card holder's privacy;

• Meet Congressional mandates as both expressed in current legislation and supported in pending legislation;

• Meet standards of the International Maritime Organization (IMO); and

• Be scalable and expandable to address future access-enabling technologies.

In terms developed by the workshop, the solution would be Secure, Acceptable, Reliable, and Uniform.

The events of September 11 heightened awareness of waterfront vulnerability and the need for better control. This is a very dynamic area in which new risks are perceived and new technologies are available to address them. The Coast Guard intends to address those risks initially by resuming enforcement of existing rules, such as 33 CFR Parts 6 and 125, until DOT, Congress, and the CDAG provide new guidance and direction for incorporating more effective, commerce-friendly technology.

The Coast Guard is continually participating in the CDAG's efforts and awaits its recommendations, as well as DOT's decision on the TWIC, to avoid proceeding in any direction that may be in conflict with the decision ultimately chosen by the Department. We recognize the necessity of gathering information so that we will be prepared to carry out our commitment to enhance maritime security in a timely manner. We also recognize the imperative of controlling access while we achieve a longer-term, comprehensive means of security. At this time we are not requesting that comments be submitted addressing this notice or its subject. However, before any new rulemaking the public will have the opportunity to comment.

This document serves to bring to the attention of the public clarification of the identification credentials deemed acceptable to the Commandant under 33 CFR 125.09(f). Furthermore, as stated in 33 CFR 6.10-5, and in 33 CFR 125.09, 125.15, and 125.53, the Coast Guard may, from time to time, prevent individuals without the proper identification credentials from gaining access to waterfront facilities, areas within the port and harbor, and on vessels and harbor craft. From September 6, 2002, every person (including passengers) entering a waterfront facility, or embarking on or disembarking from a vessel or a harbor craft, may use credentials that are laminated (or otherwise protected against tampering), contain the person's full name and a current photograph, and bear the name of the issuing authority to meet the requirements of 33 CFR 6.10-5, 33 CFR 125.15, and 125.53.

Because these credentials are for use essentially in the maritime realm, they bear the narrow label of “maritime credentials.” However, since the people carrying them will be representative of the inter-modal community (shipping, trucking, and rail employees, as well as longshoremen and mariners), the credentials will not apply solely to personnel in the maritime realm. When the Department of Transportation makes a decision concerning the TWIC, the Coast Guard will reevaluate this action and determine how best to harmonize these requirements with any requirements by the Department of Transportation.

At this time, we must limit identification credentials “satisfactory to the Commandant” [33 CFR 6.10-5] to those issued by a Federal, State, or local authority in the United States acceptable to the Captain of the Port (COTP). As Port Security Plans are developed, they will detail acceptable issuing authorities. Acceptable credentials include:

• A military identification card;

• A badge for a Federal employee such as DOT, DOD, FBI, CIA;

• A driver's license or official identification card issued by a Department of Motor Vehicles or a Motor-Vehicle Administration within the U.S.;

• A merchant mariner's document issued by the Coast Guard;

• A valid passport;

• A local-law enforcement credential;

• An identification credential issued by a State or local port authority; and

• An identification credential issued by a company, union, or trade association.

The Coast Guard is implementing the permanent safety zones in 33 CFR 165.909(a)(6)(7)(24)-(27) (67 FR 44560, July 3, 2002), for fireworks displays in the Captain of the Port Milwaukee Zone during August 2002. In chronological order, the following safety zones are in effect for fireworks displays occurring in the month of August 2002:

African World Festival—Milwaukee, WI . This safety zone will be enforced on August 2, 2002, from 8:50 p.m. until 9:30 p.m. In the event of inclement weather on August 2, 2002, the safety zone will be enforced from 8:50 p.m. until 9:30 p.m. on August 3, 2002.

Sturgeon Bay Venetian Night Fireworks. This safety zone will be enforced on August 3, 2002 from 9:20 a.m. until 10:10 p.m.

Menominee Waterfront Festival. This safety zone will be enforced on August 3, 2002 from 9:20 p.m. until 10:10 p.m.

Algoma Shanty Days Fireworks. This safety zone will be enforced on August 11, 2002, from 9:20 p.m. until 10:10 p.m. If the secondary location is used it will be during the same times as the primary location.

Irishfest Fireworks—Milwaukee, WI. This safety zone will be enforced on August 15 through 18, 2002, from 9:25 p.m. until 10 p.m.

Sister Bay Marinafest—Sister Bay. This safety zone will be enforced on August 31, 2002, from 8 p.m. until 10 p.m.

In order to ensure the safety of spectators and transiting vessels, this safety zone will be in effect for the duration of the event. Vessels may not enter the safety zone without permission from Captain of the Port Milwaukee Zone. Requests to transit the safety zone must be made in advance by contacting the person listed in FOR FURTHER INFORMATION CONTACT and must be approved by the Captain of the Port Milwaukee before transits will be authorized. Spectator vessels may anchor outside the safety zone but are cautioned not to block a navigable channel.

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/. To access the OPPTS Harmonized Guidelines referenced in this document, go directly to the guidelines at http://www.epa.gov/opptsfrs/home/guidelin.htm. A frequently updated electronic version of 40 CFR part 180 is available at http://www.access.gpo.gov/nara/cfr/cfrhtml_180/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 ID number OPP-2002-0106. 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.

In the Federal Register of February 27, 2002 (67 FR 8968) (FRL-6818-9), EPA issued a notice pursuant to section 408 of FFDCA, 21 U.S.C. 346a(d), as amended by FQPA (Public Law 104-170), announcing the filing of a pesticide tolerance petition (PP 1F6271) by Bird Shield Repellent Corporation, P.O. Box 785, Pullman, WA 99163. This notice included a summary of the petition prepared by the petitioner Bird Shield Repellent Corporation. There were no comments received in response to the notice of filing.

The petition requested that 40 CFR 180.1143 be amended by establishing an exemption from the requirement of a tolerance for residues of methyl anthranilate in or on all food commodities.

New section 408(c)(2)(A)(i) of the FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(c)(2)(A)(ii) defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....” Additionally, section 408(b)(2)(D) requires that the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.

Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness, and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

Methyl anthranilate is naturally occurring in certain foods, such as concord grapes. It is also synthetically produced and used as a flavoring agent (21 CFR 182.60) in beverages, ice cream, candy, baked goods, gelatins, puddings, and chewing gum. It is also exempt from the requirement of a tolerance in or on blueberries, cherries, grapes, corn and sunflowers (40 CFR 180.1143). A discussion of the rationale supporting that exemption may be found in the first proposed rule ((60 FR 9816), February 22, 1995, (FRL-4936-2)), as well as in the final rules ((60 FR 20432), April 26, 1995, (FRL-4941-8)) and ((66 FR 30822), June 8, 2001, (FRL-6780-9)). In addition, methyl anthranilate is classified as generally recognized as safe (GRAS) by the Food and Drug Administration (FDA) (21 CFR 182.60).

Methyl anthranilate, applied at labeled rates, rapidly decomposes into non-toxic components leaving no significant residues relative to levels found in food commodities to which it is applied, because of its volatility (MRID 42151903). Some residues studies found no residues at time of harvest, while other studies showed that the residues of methyl anthranilate were less than those found naturally in grapes. Moreover, it has been determined that even if ingested, the chemical rapidly metabolizes in the intestines and byproducts are excreted (MRID 44786300, Part B). In addition to this information, the Agency has determined that all toxicology data requirements have been satisfied and it has conducted a review of these studies. Summaries of these studies are presented below. For a more detailed discussion of these studies, see the Data Review Records located in the information docket referred to above.

Methyl anthranilate exhibits little or no mammalian toxicity. It metabolizes in the intestine when consumed. The lethal dose (LD) 50 values for methyl anthranilate were estimated to be greater than 5,000 milligram/kilogram (mg/kg) in an acute oral toxicity study in rats (Toxicity Category IV) and greater than 2,000 mg/kg in dermal toxicity studies using rats (Toxicity Category III). Whole body inhalation studies, for the same species, determined toxicity to be greater than 2.24 mg/L. Methyl anthranilate was found to cause moderate irritation in a rabbit skin irritation assay (Toxicity Category III) and corneal effects that cleared in 8 to 21 days in a rabbit eye irritation assay (Toxicity Category II).

Appropriate labeling (protective eyewear) was used to mitigate these minimal acute toxicological risks. Due to the low toxicity, metabolism, rapid degradation and long history of dietary exposure to this naturally occurring biochemical, chronic and subchronic data were waived. No other toxic endpoints were identified and therefore no reference dose and no observable adverse effect levels were established.

In examining aggregate exposure, FFDCA section 408 directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non-occupational exposures, including drinking water from ground water or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses).

1. Food. Methyl anthranilate bird repellent is labeled to be applied at a rate of 0.2862 up to 6.18 pounds per acre depending on the crop/use. Pre-harvest intervals are established for all food crops on the label to minimize residues. Because of these relatively low use rates and pre-harvest intervals as currently registered and labeled, and the biochemical's rapid degradation, few methyl anthranilate residues have been detected on treated crops, and some studies found no residues immediately after application (MRID 45065102, 45065103, 45065104, 45065105). Further, because of its volatility and degradation (MRID 43119401) when exposed to ultraviolet light and elevated temperatures, no residues or low residues (below natural levels occurring in commonly consumed foods, such as grapes) are expected at harvest of treated crops (MRID 42740205). Dietary exposure to methyl anthranilate, by consumption of treated food or feed, is therefore expected to be negligible (MRID 44786301). Further, since methyl anthranilate has shown no mammalian toxicity and is rapidly metabolized in human intestines and liver, no dietary risk from any residues that may result from these additional uses of this biochemical pesticide are anticipated. To date, there have been no reports of any hypersensitivity incidents or reports of any known adverse reactions in humans resulting from exposure to methyl anthranilate.

2. Drinking water exposure. Methyl anthranilate is very unlikely to be found in drinking water, given the low application rates and rapid environmental and microbial degradation (MRID 431194-01).

1. Even though methyl anthranilate products are registered for use on lawns and ornamentals and are used on household garden crops (cherries, blueberries and table grapes), the non-occupational exposure is not expected to be great because of the limited number of times it will be used (once per season), the size of the crops to which the repellent will be applied, (backyard trees, bushes and vines), and the small amounts of the repellent required to protect the crops (for example, 0.0945 lbs./tree) from bird damage during a brief period of time (typically, 1 to 2 weeks).

2. Because the labeled application rate is low for residential uses and the fact that methyl anthranilate rapidly degrades under sunlight and elevated temperatures after application, only limited human exposure is anticipated. Household applicator exposure is addressed through appropriate labeling: “Wear protective eyewear (goggles, face shield or safety glasses)” and “Do not get in eyes or on clothing.”

3. Further, considering the fact that several uses of this biochemical have been registered for several years on several agricultural crops as well as turf, structures and ornamentals, the Agency has received no reports of adverse effects from the uses of methyl anthranilate.

Methyl anthranilate does not exhibit a toxic mode of action to mammals, nor even to the target pest (birds), to which limit doses were tested. Thus, because there is no indication of mammalian toxicity to this biochemical, no cumulative effects with other compounds is expected.

1. U.S. population . There is a reasonable certainty that no harm will result from aggregate exposure to residues of methyl anthranilate to the U.S. population under reasonably foreseeable circumstances. This includes all anticipated dietary exposures and all other exposures for which there is reliable information. The Agency has arrived at this conclusion based on the very low levels of mammalian toxicity (no toxicity at the maximum doses tested) associated with methyl anthranilate and a history of safe use and consumption of methyl anthranilate as well as a consideration of the product as currently registered and labeled.

2. Infants and children. FFDCA section 408 provides that EPA shall apply an additional tenfold margin of exposure (safety) for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA determines that a different margin of exposure (safety) will be safe for infants and children. Margins of exposure (safety) are often referred to as uncertainty (safety) factors. In this instance, based on all the available information, the Agency concludes that methyl anthranilate is practically non-toxic to mammals, including infants and children. Thus, there are no threshold effects of concern and, as a result the provision requiring an additional margin of safety does not apply. Further, the provisions of consumption patterns, special susceptibility, and cumulative effects do not apply. As a result, EPA has not used a margin of exposure (safety) approach to assess the safety of methyl anthranilate.

EPA is required under the FFDCA, as amended by FQPA, to develop a screening program to determine whether certain substances (including all pesticide active and other ingredients) “may have an effect in humans that is similar to an effect produced by a naturally- occurring estrogen, to other such endocrine effects as the Administrator may designate.” Following the recommendations of its Endocrine Disruptor Screening and Testing Advisory Committee (EDSTAC), EPA determined that there was scientific basis for including, as part of the program, the androgen and thyroid hormone systems, in addition to the estrogen hormone system. EPA also adopted EDSTAC's recommendation that the program include evaluations of potential effects in wildlife. For pesticide chemicals, EPA will use FIFRA and, to the extent that effects in wildlife may help determine whether a substance may have an effect in humans, FFDCA authority to require the wildlife evaluations. As the science develops and resources allow, screening of additional hormone systems may be added to the Endocrine Disruptor Screening Programs (EDSP). When the appropriate screening and or testing protocols being considered under the Agency's EDSP have been developed, methyl anthranilate may be subjected to additional screening and/or testing to better characterize effects related to endocrine disruption.

Based on available data, no endocrine system-related effects have been identified with the consumption of methyl anthranilate. It is a naturally occurring substance found in grapes. To date, there is no evidence to suggest that methyl anthranilate affects the immune system, functions in a manner similar to any known hormone, or that it acts as an endocrine disruptor.

This action is establishing an exemption from the requirement of a tolerance for the reasons described above. As previously noted, methyl anthranilate exhibits rather low toxicity. For this reason and because no significant residues have been detected on treated crops at time of harvest (in other words, residues beyond that of methyl anthranilate found naturally in grapes are unlikely), no analytical method for enforcement purposes is necessary.

The Agency is not aware of any international tolerances, exemptions from tolerance or Maximum Residue Levels (MRLs) issued for methyl anthranilate. Furthermore, the Agency is not aware of any issues regarding Codex MRLs.

Based on the toxicology data submitted and other relevant information in the Agency's files, there is reasonable certainty no harm will result from aggregate exposure of residues of methyl anthranilate to the U.S. population, including infants and children, under reasonably foreseeable circumstances when the biopesticide product is used as labeled and in accordance with good agricultural practices. This includes all anticipated dietary exposures and all other exposures for which there is reliable information. The Agency has arrived at this conclusion based on data submitted demonstrating no toxicity at the maximum doses tested and a long history of safe use and consumption of naturally occurring methyl anthranilate as well as a consideration of the product as currently registered and labeled. As a result, EPA establishes an exemption from tolerance requirements pursuant to FFDCA 408(c) and (d) for residues of methyl anthranilate in or on all food commodities.

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 ID number OPP-2002-0106 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 October 7, 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 IX.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 ID number OPP-2002-0106, 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 establishes an exemption from the requirement of a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. 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 petition under FFDCA section 408(d), such as the exemption 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).

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. To access the OPPTS Harmonized Guidelines referenced in this document, go directly to the guidelines at http:// www.epa.gov/opptsfrs/home/guidelin.htm.

2. In person . The Agency has established an official record for this action under docket ID number OPP-2002-0160. 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.

In the Federal Register of March 19, 1998 (63 FR 13401) (FRL-5776-7), EPA issued a notice pursuant to section 408 of FFDCA, 21 U.S.C. 346a, as amended by FQPA (Public Law 104-170), announcing the filing of a pesticide petition (PP 3F4215) by E.I. du Pont de Nemours & Company, Agricultural Products, P. O. Box 80038, Wilmington, DE 19880-0038. This notice included a summary of the petition prepared by E.I. Du Pont de Nemours & Company, the registrant. There were no comments received in response to the notice of filing.

The petition requested that 40 CFR 180.428 be amended by establishing tolerances for combined residues of the herbicide metsulfuron methyl, methyl-2-[[[[ (4-methoxy-6- methyl-1,3,5-triazin- 2-yl)amino]carbonyl] amino]sulfonyl] benzoate, in or on sorghum grain at 0.1 ppm, sorghum forage at 0.2 ppm, and sorghum fodder at 0.2 ppm. Since the publication of the notice of filing, the name and address of the registrant has changed to E.I. DuPont de Nemours and Company, Crop Protection, Stine-Haskell Research Center, P.O. Box 30, Newark, DE 19714-0030. During the course of the review, the Agency determined the commodity listing for grain sorghum should be defined as sorghum, grain, forage; sorghum, grain, grain; and sorghum, grain, stover. The Agency also determined that the metabolite, methyl-2-[[[[ (4-methoxy-6-methyl-1,3,5-triazin- 2-yl)amino] carbonyl]amino] sulfonyl]-4-hydroxybenzoate should be included in the tolerance expression for the sorghum, grain commodities. The Agency is also removing the time-limited tolerances established under paragraph b for sorghum, fodder at 0.5 ppm, sorghum, forage at 0.3 ppm, and sorghum, grain at 0.4 ppm, since these will be replaced by these tolerances.

Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) defines “safe” to mean that“ there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....”

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 and a complete description of the risk assessment process, see the final rule on Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997) (FRL-5754-7).

Consistent with section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2), for tolerances for combined residues of metsulfuron methyl (methyl 2-[[[[(4-methoxy-6-methyl-1,3,5-triazin-2-yl)amino] carbonyl]amino]sulfonyl]benzoate) and its metabolite methyl 2-[[[[(4-methoxy-6-methyl-1,3,5-triazin-2-yl)amino]carbonyl]amino]sulfonyl]-4-hydroxybenzoate on sorghum, grain, forage at 0.2 ppm; sorghum, grain, grain at 0.1 ppm; and sorghum, grain, stover at 0.2 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The nature of the toxic effects caused by metsulfuron methyl are discussed in the following Table 1 as well as the no observed adverse effect level (NOAEL) and the lowest observed adverse effect level (LOAEL) from the toxicity studies reviewed.

The dose at which the NOAEL from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological level of concern (LOC). However, the LOAEL is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study selected. An uncertainty factor (UF) is applied to reflect uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. An UF of 100 is routinely used, 10X to account for interspecies differences and 10X for intra species differences.

For dietary risk assessment (other than cancer) the Agency uses the UF to calculate an acute or chronic reference dose (acute RfD or chronic RfD) where the RfD is equal to the NOAEL divided by the appropriate UF (RfD = NOAEL/UF). Where an additional safety factor is retained due to concerns unique to the FQPA, this additional factor is applied to the RfD by dividing the RfD by such additional factor. The acute or chronic Population Adjusted Dose (aPAD or cPAD) is a modification of the RfD to accommodate this type of FQPA Safety Factor.

For non-dietary risk assessments (other than cancer) the UF is used to determine the LOC. For example, when 100 is the appropriate UF (10X to account for interspecies differences and 10X for intraspecies differences) the LOC is 100. To estimate risk, a ratio of the NOAEL to exposures (margin of exposure (MOE) = NOAEL/exposure) is calculated and compared to the LOC.

The linear default risk methodology (Q*) is the primary method currently used by the Agency to quantify carcinogenic risk. The Q* approach assumes that any amount of exposure will lead to some degree of cancer risk. A Q* is calculated and used to estimate risk which represents a probability of occurrence of additional cancer cases (e.g., risk is expressed as 1 x 10 -6 or one in a million). Under certain specific circumstances, MOE calculations will be used for the carcinogenic risk assessment. In this non-linear approach, a “point of departure” is identified below which carcinogenic effects are not expected. The point of departure is typically a NOAEL based on an endpoint related to cancer effects though it may be a different value derived from the dose response curve. To estimate risk, a ratio of the point of departure to exposure (MOE cancer> = point of departure/exposures) is calculated. A summary of the toxicological endpoints for metsulfuron methyl used for human risk assessment is shown in the following Table 2:

1. Dietary exposure from food and feed uses . Tolerances have been established (40 CFR 180.428) for the combined residues of metsulfuron methyl and its metabolite methyl 2-[[[[(4-methoxy-6-methyl-1,3,5-triazin-2- yl)amino]carbonyl]amino]sulfonyl]-4-hydroxybenzoate, in or on a variety of raw agricultural commodities. Tolerances have been established for residues of metsulfuron methyl on fat, meat, and meat byproducts of cattle, goats, hogs, horses, and sheep at 0.1 ppm; kidney of cattle, goats, hogs, horse, and sheep at 0.5 ppm, and milk at 0.05 ppm. Risk assessments were conducted by EPA to assess dietary exposures from metsulfuron methyl in food as follows:

i. Acute exposure . Acute dietary risk assessments are performed for a food-use pesticide if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a one day or single exposure. No acute dietary endpoint attributable to a single dose was identified. Therefore, quantification of acute dietary risk was not performed.

ii. Chronic exposure . In conducting this chronic dietary risk assessment the Dietary Exposure Evaluation Model (DEEM®) analysis evaluated the individual food consumption as reported by respondents in the USDA 1989-1992 nationwide Continuing Surveys of Food Intake by Individuals (CSFII) and accumulated exposure to the chemical for each commodity. The following assumptions were made for the chronic exposure assessments: Tolerance residue levels, 100% crop treated (CT) for all commodities, and DEEM® defaults for all processing factors. In addition, the chemical iodosulfuron methyl recently received a favorable recommendation for tolerances on corn, field, grain at 0.03 ppm, and corn, field, stover and forage at 0.05 ppm. Since the major metabolite of iodosulfuron methyl is metsulfuron methyl, these tolerances were included in the dietary exposure assessment.

iii. Cancer . Since metsulfuron methyl has been classified as “Not likely to be a human carcinogen”, a cancer risk assessment was not performed.

2. Dietary exposure from drinking water . The Agency lacks sufficient monitoring exposure data to complete a comprehensive dietary exposure analysis and risk assessment for metsulfuron methyl in drinking water. Because the Agency does not have comprehensive monitoring data, drinking water concentration estimates are made by reliance on simulation or modeling taking into account data on the physical characteristics of metsulfuron methyl.

The Agency uses the First Index Reservoir Screening Tool (FIRST) or the Pesticide Root Zone/Exposure Analysis Modeling System (PRZM/EXAMS), to produce estimates of pesticide concentrations in an index reservoir. The SCI-GROW model is used to predict pesticide concentrations in shallow ground water. For a screening-level assessment for surface water EPA will use FIRST (a tier 1 model) before using PRZM/EXAMS (a tier 2 model). The FIRST model is a subset of the PRZM/EXAMS model that uses a specific high-end runoff scenario for pesticides. While both FIRST and PRZM/EXAMS incorporate an index reservoir environment, the PRZM/EXAMS model includes a percent crop area factor as an adjustment to account for the maximum percent crop coverage within a watershed or drainage basin.

None of these models include consideration of the impact processing (mixing, dilution, or treatment) of raw water for distribution as drinking water would likely have on the removal of pesticides from the source water. The primary use of these models by the Agency at this stage is to provide a coarse screen for sorting out pesticides for which it is highly unlikely that drinking water concentrations would ever exceed human health levels of concern.

Since the models used are considered to be screening tools in the risk assessment process, the Agency does not use estimated environmental concentrations (EECs) from these models to quantify drinking water exposure and risk as a %RfD or %PAD. Instead drinking water levels of comparison (DWLOCs) are calculated and used as a point of comparison against the model estimates of a pesticide's concentration in water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food, and from residential uses. Since DWLOCs address total aggregate exposure to metsulfuron methyl they are further discussed in the aggregate risk sections in Unit E.

Based on the PRZM/EXAMS used to estimate the concentration of metsulfuron methyl in surface water and FIRST to estimate the concentration of metsulfuron methyl as a metabolite of iodosulfuron methyl since FIRST has been used in estimating the drinking water values for corn use with the proposed label for iodosulfuron methyl and SCI-GROW models the EECs of metsulfuron methyl for acute exposures are estimated to be 1.37 parts per billion (ppb) for surface water and 0.104 ppb for ground water. The EECs for chronic exposures are estimated to be 0.332 ppb for surface water and 0.104 ppb for ground water.

3. From non-dietary exposure . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Metsulfuron methyl is currently registered for use on the following residential non-dietary sites: ornamental turf such as lawns, parks, cemeteries, golf courses (fairways, aprons, tees, and roughs) and similar non-crop areas, It has been determined that there is a potential for exposure in residential settings during the application process for homeowners who purchase and use products containing metsulfuron methyl. There is also a potential for exposure from entering areas previously treated with metsulfuron methyl such as turf (i.e., lawns and parks) and golf courses that could lead to exposures for adults and children. As a result, risk assessments have been completed for both residential handler and postapplication scenarios. Based on the use pattern, short-term exposure is expected. The risk assessment was conducted using the following residential exposure assumptions: The assumptions and factors used in the risk calculations for handler exposure scenarios include:

• Exposure factors used to calculate daily exposures to handlers are based on applicable data if available. For lack of appropriate data, values from a scenario deemed similar enough by the assessor might be used.

• The Agency always considers the maximum application rates allowed by labels in its risk assessments to consider what is legally possible based on the label. If additional information such as average or typical rates are available, these values are also used to allow risk managers to make a more informed risk management decision.

The Agency bases calculations for residential risk assessments on what would reasonably be treated by homeowners such as the size of the lawn, or the size of a garden. This information was used by the Agency to define chemical values for handlers which in turn are coupled with unit exposure to calculate risks.

Noncancer risk were calculated using the Margins of Exposure (MOE) for two scenarios, (1) low pressure handwand and (2) hose-end sprayer. Residential risk assessments apply an additional FQPA safety factor to the risk when appropriate, which defines the level of concern. In the case of metsulfuron methyl, no additional safety factor (1x) is necessary to protect the safety of infants and children in assessing metsulfuron methyl risks and exposure.

Children may also be exposed by incidental non-dietary ingestion of pesticide residues on residential lawns from hand to mouth transfer. This scenario assumes that pesticide residues are transferred to the skin of toddlers playing on recreational or residential lawns and turfs and are subsequently ingested as a result of hand-to-mouth transfer. The method for estimating postapplication incidental ingestion dose from pesticide residues on turf is based on the following assumptions.

• On the day of application 5% of the application rate are available on the turfgrass as dislodgeable residue. The 5% transfer factor is based on data by Clothier (2000). (Science Advisory Council for Exposure Policy #12: Recommended Revisions to the Standard Operating Procedures (SOPs) for Residential Exposure Assessments; Revised February 22, 2001).

• Postapplication activities are assessed on the same day the pesticide is applied since it is assumed that toddlers could play on the lawn immediately after application. For subsequent days after application, an assumed 10% pesticide dissipation rate is used.

• The median surface area of both hands is 20 cm 2 for a toddler. Since the hand-to-mouth has been defined by the February 1999 Science Advisory Panel (SAP) as 1 to 3 fingers (5.7 to 17.1 cm 2 ) a screening level of 20 cm 2 was selected based on the assumption that each hand-to-mouth event equals 3 fingers (Science Advisory Council for Exposure Policy #12: Recommended Revisions to the Standard Operating Procedures (SOPs) for Residential Exposure Assessments; Revised February 22, 2001).

• It is assumed that there is a one-to-one relationship between the dislodgeable residues on the turf and on the surface area of the skin after contact.

• The mean rate of hand-to-mouth activity is 20 events/hr for toddlers age 2 to 5 years old for short-term exposure. The 1999 SAP recommended the use of the 90 th percentile value of 20 events based on reported hourly frequencies of hand-to-mouth events in pre school children aged 2 to 5 years observations using video tapes by Reed et al. (Science Advisory Council for Exposure Policy #12: Recommended Revisions to the Standard Operating Procedures (SOPs) for Residential Exposure Assessments; Revised February 22, 2001).

• The duration of exposure for toddlers is assumed to be 2 hours per day. This is based on the 75 th percentile value (i.e., 120 min/day) for playing on grass for ages 1 to 4 years and 5-11 years (Tsang and Klepeis 1996 as cited on pag 15-79 of EPA 1997, Exposure Factors Handbook EFH).

• Toddlers (age 3 years) used to represent the 1 to 6 year old group, are assumed to weigh 15 kg. This is the mean of the median values for male and female children (US EPA 1996a).

• A saliva extraction factor of 50% was used (Science Advisory Council for Exposure Policy # 12: Recommended Revisions to the Standard Operating Procedures (SOPs) for Residential Exposure Assessments; Revised February 22, 2001).

These values were used to calculate the MOE for incidental ingestion of pesticide residues from hand to mouth transfer.

Children (toddlers) may be exposed postapplication through ingestion of pesticide treated turfgrass. This scenario assumes that turf is ingested by toddlers who play on treated areas (i.e., yards, playgrounds). The method for estimating postapplication ingestion exposure to pesticide residues in turfgrass is based on the following assumptions:

• On the day of application 5% of the application rate are available to be ingested. This is assumed to represent an upper-percentile input.

• Postapplication must be assessed on the same day the pesticide is applied because it is assumed that toddlers could play on the lawn immediately after application.

• The assumed ingestion rate for grass for toddlers (age 3 years) is 25 cm 2 /day. This value is intended to represent the approximate area from which a child may grasp a handful of grass. This is assumed to represent an upper-percentile input.

• Toddlers (age 3 years), used to represent the 1 to 6 year old age group, are assumed to weigh 15 kg (U.S. EPA, 1996).

These values were then used to calculate the MOE for ingestion of pesticide treated turf. Children may be exposed postapplication through ingestion of soil from pesticide treated residential areas. This scenario assumes that pesticide residues in soil are ingested by toddlers who play on treated areas as a result of normal mouthing activities. The method for estimating postapplication ingestion exposure to pesticide residues in soil is based on the following assumptions:

• On the day of application, it is assumed that 100% of the application rate are located within the soil's uppermost 1 cm.

• Postapplication must be assessed on the same day the pesticide is applied because it is assumed that toddlers could play on the lawn or other outdoor treated area immediately after application.

• The assumed soil ingestion rate for children (ages 1-6) is 100 mg/day. This is the mean soil ingestion rate value recommended by EPA for use in exposure/risk assessments (U.S. EPA, 1996).

• Toddlers (age 3 years), used to represent the 1 to 6 year old age group, are assumed to weigh 15 kg (U.S. EPA, 1996).

These values were than used to calculate the MOE for soil ingestion of pesticide treated areas.

4. Cumulative exposure to substances with a common mechanism of toxicity . Section 408(b)(2)(D)(v) requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA does not have, at this time, available data to determine whether metsulfuron methyl has a common mechanism of toxicity with other substances or how to include this pesticide in a cumulative risk assessment. Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, metsulfuron methyl does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that metsulfuron methyl has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the final rule for Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997).

1. In general . FFDCA section 408 provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base on toxicity and exposure unless EPA determines that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a MOE analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans.

2. Prenatal and postnatal sensitivity . There is no quantitative or qualitative evidence of increased susceptibility in the pre-natal studies in rat and rabbit or in the multi-generation reproduction study evaluating pre- and post-natal exposure.

3. Conclusion . There is a complete toxicity data base for metsulfuron methyl and exposure data are complete or are estimated based on data that reasonably accounts for potential exposures. EPA determined that the 10X safety factor to protect infants and children should be removed. The FQPA factor is removed because there is no quantitative or qualitative evidence of increased susceptibility in the pre-natal studies in rat and rabbit or in the multi-generation reproduction study evaluating pre- and post-natal exposure; a developmental neurotoxicity study is not required, and there are no data deficiencies or residual uncertainties identified in the hazard and exposure databases for metsulfuron methyl. The only study outstanding for metsulfuron methyl is a 28-day inhalation (nose only) study which is required due to the concern for the occupational exposure via this route based on current use pattern.

To estimate total aggregate exposure to a pesticide from food, drinking water, and residential uses, the Agency calculates DWLOCs which are used as a point of comparison against the model estimates of a pesticide's concentration in water (EECs). DWLOC values are not regulatory standards for drinking water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food and residential uses. In calculating a DWLOC, the Agency determines how much of the acceptable exposure (i.e., the PAD) is available for exposure through drinking water [e.g., allowable chronic water exposure (mg/kg/day) = cPAD - (average food + residential exposure)]. This allowable exposure through drinking water is used to calculate a DWLOC.

A DWLOC will vary depending on the toxic endpoint, drinking water consumption, and body weights. Default body weights and consumption values as used by the USEPA Office of Water are used to calculate DWLOCs: 2L/70 kg (adult male), 2L/60 kg (adult female), and 1L/10 kg (child). Default body weights and drinking water consumption values vary on an individual basis. This variation will be taken into account in more refined screening-level and quantitative drinking water exposure assessments. Different populations will have different DWLOCs. Generally, a DWLOC is calculated for each type of risk assessment used: acute, short-term, intermediate-term, chronic, and cancer.

When EECs for surface water and ground water are less than the calculated DWLOCs, EPA concludes with reasonable certainty that exposures to the pesticide in drinking water (when considered along with other sources of exposure for which EPA has reliable data) would not result in unacceptable levels of aggregate human health risk at this time. Because EPA considers the aggregate risk resulting from multiple exposure pathways associated with a pesticide's uses, levels of comparison in drinking water may vary as those uses change. If new uses are added in the future, EPA will reassess the potential impacts of residues of the pesticide in drinking water as a part of the aggregate risk assessment process.

1. Acute risk . Because there was no acute endpoint attributable to a single dose identified for metsulfuron methyl, EPA does not expect metsulfuron methyl to pose an acute risk.

2. Chronic risk . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to metsulfuron methyl from food will utilize < 1% of the cPAD for the U.S. population, < 1% of the cPAD for all infants and < 1% of the cPAD for children 1-6 years old. Based on the use pattern, chronic residential exposure to residues of metsulfuron methyl is not expected. In addition, there is potential for chronic dietary exposure to metsulfuron methyl in drinking water. After calculating DWLOCs and comparing them to the EECs for surface and ground water, EPA does not expect the aggregate exposure to exceed 100% of the cPAD, as shown in the following Table 3:

3. Short-term risk . Short-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

Metsulfuron methyl is currently registered for use that could result in short-term residential exposure and the Agency has determined that it is appropriate to aggregate chronic food and water and short-term exposures for metsulfuron methyl.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded that food and residential exposures aggregated result in aggregate MOEs of 12,000 for children-short term aggregate, and 39,000 for adults-short term aggregate. These aggregate MOEs do not exceed the Agency's level of concern for aggregate exposure to food and residential uses. In addition, short-term DWLOCs were calculated and compared to the EECs for chronic exposure of metsulfuron methyl in ground and surface water. After calculating DWLOCs and comparing them to the EECs for surface and ground water, EPA does not expect short-term aggregate exposure to exceed the Agency's level of concern, as shown in the following Table 4:

4. Intermediate-term risk . Intermediate-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

Though residential exposure could occur with the use of metsulfuron methyl, the potential intermediate-term exposures were not aggregated with chronic dietary food and water exposures because the short- and intermediate-term endpoints are the same (NOAEL = 34 mg/kg/day) and the short-term aggregate risk assessment which includes the same routes of exposure is worst-case and below the Agency level of concern. Therefore, based on the best available data and current policies, potential risks do not exceed the Agency's level of concern.

5. Aggregate cancer risk for U.S. population . Since metsulfuron methyl has been classified as “Not likely to be a human carcinogen”, metsulfuron methyl is not expected to pose a cancer risk.

6. Determination of safety . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, and to infants and children from aggregate exposure to metsulfuron methyl residues.

Adequate methods are available for enforcement of tolerances for residues of metsulfuron methyl in/on plant and animal commodities. PAM Vol. II lists Methods I and III which are respectively capable of determining residues of metsulfuron methyl per se (LOQ = 0.02 ppm for wheat grain; 0.05 ppm for forage and straw) and combined Metabolites A and A1 (LOQ = ppm for grain and forage; 0.1 ppm for straw); Method II determines parent compound in ruminant tissues and milk to a lower limit of 0.02-0.05 ppm.

There are currently no Codex, Canadian, or Mexican maximum residue levels (MRLs) for metsulfuron methyl, thus international harmonization is not an issue.

A 28-day inhalation (nose-only) study is required as a condition of registration.

Therefore, tolerances are established for combined residues of metsulfuron methyl, methyl 2-[[[[ (4-methoxy-6-methyl-1,3,5- triazin-2- yl)amino]carbonyl] amino]sulfonyl]benzoate and its metabolite methyl 2-[[[[( 4-methoxy-6-methyl-1,3,5-triazin-2-yl) amino]carbonyl]amino]sulfonyl]- 4-hydroxybenzoate in or on sorghum, grain, forage at 0.2 ppm; sorghum, grain, grain at 0.1 ppm; and sorghum, grain, stover at 0.2 ppm. The text of paragraph (b) is removed and reserved.

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 ID number OPP-2002-0160 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 October 7, 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 VI.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 ID number OPP-2002-0160, 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 establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. 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 petition under FFDCA section 408(d), 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).

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 ID number OPP-2002-0148. 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.

In the Federal Register of (May 23, 2002, 67 FR 36176) (FRL-6834-9), EPA issued a notice pursuant to section 408 of the FFDCA, 21 U.S.C. 346a, as amended by the FQPA (Public Law 104 -170), announcing the filing of a pesticide petition (PP 2E6411) by MeadWestvaco Corporation, 3950 Faber Place Drive, N. Charleston, SC 29405. This notice included a summary of the petition prepared by the petitioner. There were no comments received in response to the notice of filing.

The petition requested that 40 CFR 180.1001 (c) and (e) be amended by establishing an exemption from the requirement of a tolerance for residues of 2-propenoic acid, 2-methyl-,polymer with ethyl 2-propenoate and methyl 2-methyl-2-propenoate, ammonium salt; CAS Registration No. 55989-05-4.

Section 408(c)(2)(A)(i) of the FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(c)(2)(A)(ii) defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing an exemption from the requirement of a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . .” and specifies factors EPA is to consider in establishing an exemption.

Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In the case of certain chemical substances that are defined as polymers, the Agency has established a set of criteria to identify categories of polymers that should present minimal or no risk. The definition of a polymer is given in 40 CFR 723.250(b). The following exclusion criteria for identifying these low risk polymers are described in 40 CFR 723.250(d).

1. The polymer, 2-propenoic acid, 2-methyl-, polymer with ethyl 2-propenoate and methyl 2-methyl-2-propenoate, ammonium salt, is not a cationic polymer nor is it reasonably anticipated to become a cationic polymer in a natural aquatic environment.

2. The polymer does contain as an integral part of its composition the atomic elements carbon, hydrogen, and oxygen and nitrogen.

3. The polymer does not contain as an integral part of its composition, except as impurities, any element other than those listed in 40 CFR 723.250(d)(2)(ii).

4. The polymer is neither designed nor can it be reasonably anticipated to substantially degrade, decompose, or depolymerize.

5. The polymer is manufactured or imported from monomers and/or reactants that are already included on the TSCA Chemical Substance Inventory or manufactured under an applicable TSCA section 5 exemption.

6. The polymer is not a water absorbing polymer with a number average molecular weight (MW) greater than or equal to (in amu) 10,000.

Additionally, the polymer, 2-propenoic acid, 2-methyl-, polymer with ethyl 2-propenoate and methyl 2-methyl-2-propenoate, ammonium salt, also meets as required the following exemption criteria specified in 40 CFR 723.250(e).

7. The polymer's number average molecular weight (MW) of (in amu) 18,900 is greater than or equal to 10,000. The polymer contains less than 2% oligomeric material below MW 500 and less than 5% oligomeric material below MW 1,000.

Thus, 2-propenoic acid, 2-methyl-, polymer with ethyl 2-propenoate and methyl 2-methyl-2-propenoate, ammonium salt meets all the criteria for a polymer to be considered low risk under 40 CFR 723.250. Based on its conformance to the above criteria, no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to 2-propenoic acid, 2-methyl-, polymer with ethyl 2-propenoate and methyl 2-methyl-2-propenoate, ammonium salt.

For the purposes of assessing potential exposure under this exemption, EPA considered that 2-propenoic acid, 2-methyl-, polymer with ethyl 2-propenoate and methyl 2-methyl-2-propenoate, ammonium salt could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The number average MW of 2-propenoic acid, 2-methyl-, polymer with ethyl 2-propenoate and methyl 2-methyl-2-propenoate, ammonium salt is (in amu) 18,900. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since 2-propenoic acid, 2-methyl-, polymer with ethyl 2-propenoate and methyl 2-methyl-2-propenoate, ammonium salt conform to the criteria that identify a low risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. The Agency has determined that a tolerance is not necessary to protect the public health.

Section 408 (b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance or tolerance exemption, the Agency consider “available information” concerning the cumulative effects of a particular chemical's residues and “other substances that have a common mechanism of toxicity.” The Agency has not made any conclusions as to whether or not 2-propenoic acid, 2-methyl-, polymer with ethyl 2-propenoate and methyl 2-methyl-2-propenoate, ammonium salt share a common mechanism of toxicity with any other chemicals. However, 2-propenoic acid, 2-methyl-, polymer with ethyl 2-propenoate and methyl 2-methyl-2-propenoate, ammonium salt conform to the criteria that identify a low risk polymer. Due to the expected lack of toxicity based on the above conformance, the Agency has determined that a cumulative risk assessment is not necessary.

Based on the conformance to the criteria used to identify a low risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population from aggregate exposure to residues of 2-propenoic acid, 2-methyl-, polymer with ethyl 2-propenoate and methyl 2-methyl-2-propenoate, ammonium salt.

FFDCA section 408 provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA concludes that a different margin safety will be safe for infants and children. Due to the expected low toxicity of 2-propenoic acid, 2-methyl-, polymer with ethyl 2-propenoate and methyl 2-methyl-2-propenoate, ammonium salt, EPA has not used a safety factor analysis to assess the risk. For the same reasons the additional tenfold safety factor is unnecessary.

There is no available evidence that 2-propenoic acid, 2-methyl-, polymer with ethyl 2-propenoate and methyl 2-methyl-2-propenoate, ammonium salt is an endocrine disruptor.

There are no existing exemptions from the requirement of a tolerance.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

The Agency is not aware of any country requiring a tolerance for 2-propenoic acid, 2-methyl-, polymer with ethyl 2-propenoate and methyl 2-methyl-2-propenoate, ammonium salt nor have any CODEX Maximum Residue Levels (MRLs) been established for any food crops at this time.

Accordingly, EPA finds that exempting residues of 2-propenoic acid, 2-methyl-, polymer with ethyl 2-propenoate and methyl 2-methyl-2-propenoate, ammonium salt from the requirement of a tolerance will be 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 ID number OPP-2002-0148 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 October 7, 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. M3708, Waterside Mall, 1200 Pennsylvania Ave., NW., 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 VIII.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 ID number OPP-2002-0148, 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 establishes an exemption from the tolerance requirement under FFDCA section 408(d) in response to a petition submitted to the Agency. 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 petition under FFDCA section 408(d), such as the exemption 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 rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(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. To access the OPPTS Harmonized Guidelines referenced in this document, go directly to the guidelines at http://www.epa.gov/opptsfrs/home/guidelin.htm.

2. In person . The Agency has established an official record for this action under docket ID number OPP-2002-0149. 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.

In the Federal Register of September 16, 1998 (63 FR 49568) (FRL-6025-8), EPA issued a notice pursuant to section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170), announcing the filing of a pesticide petition (PP 6F03344) by Zeneca Ag Products, 1800 Concord Pike, Wilmington, DE. This notice included a summary of the petition prepared by Zeneca Ag Products, the petitioner at that time. There were no comments received in response to the notice of filing. The Agency published a final rule in the Federal Register on March 27, 2000 (65 FR 16143)( FRL-6498-7) establishing time-limited tolerances, expiring on March 27, 2002. In correspondence to the Agency, Zeneca requested additional time past March 2002 for data generation. On November 9, 2000, Zeneca Ag Products sold certain parts of its business to Dow AgroSciences. In connection with the sale, Zeneca Ag Products transferred all rights, title, and interest in dichlormid to Dow AgroSciences. The new petitioner, Dow AgroSciences, has similarly requested additional time for data generation. In the Federal Register of May 22, 2002 (67 FR 35996) (FRL-6836-4), EPA issued a notice pursuant to section 408 of the FFDCA 21 U.S.C. 346a, as amended by the FQPA of 1996 (Public Law 104-170) announcing the filing of PP 6F03344 by Dow AgroSciences, 9330 Zionsville Road, Indianapolis, IN 46268. This notice included a summary of the petition prepared by Dow Agrosciences. There were no comments received in response to the notice of filing.

The petition requested that 40 CFR 180.469 be amended by establishing tolerances for residues of the herbicide safener dichlormid, in or on field corn grain, field corn forage, and field corn fodder at 0.05 part per million (ppm).

Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....”

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 and a complete description of the risk assessment process, see the final rule on Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997) (FRL-5754-7).

Consistent with section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2), for tolerances for residues of dichlormid on field corn grain; field corn forage; and field corn fodder, (now corn, field, grain; corn, field, forage; and corn, field, stover) at 0.05 ppm. EPA's assessment of exposures and risks associated with establishing the tolerances follows.

The Agency prepared a risk assessment which was used as the basis for establishing time-limited tolerances in residues of corn, field, grain; corn, field, forage; and corn, field, stover. A final rule for these tolerances was published in the Federal Register of March 27, 2000. Based on the risk assessment, EPA concluded at that time that all of the risks are below the Agency's level of concern and there is a reasonable certainty that no harm will result to the general population, and to infants and children from aggregate exposure to residues of dichlormid on corn commodities.

For a complete description of the toxicological profile and endpoints, the uncertainty factors, the exposure assessment which included dietary exposure for both food and drinking water, the safety factor for infants and children, and aggregate risk for dichlormid, see the final rule of March 27, 2000.

The final rule of March 27, 2002, discussed data gaps which needed to be addressed before permanent tolerances could be established. Data generation is underway. According to a schedule provided by Dow AgroSciences, the following studies have been completed:

1. Chronic Feeding Study-Dog

2. 2-Generation Reproduction Study-Rat

3. General Metabolism

4. Acute Neurotoxicity

5. Subchronic Neurotoxicity

6. Plant Metabolism

7. Animal Metabolism

Studies remaining to be completed are: Crop Field Trials and Rotational Crop (Confined). Upon completion of all studies, Dow Agrosciences will submit them to the Agency. The last scheduled completion date is June 2003 for the Rotational Crop (Confined) Study. Upon receipt, the Agency will review and evaluate these studies, and prepare a new risk assessment. The Agency believes that this review and evaluation, as well as the preparation of a new risk assessment will be completed by December 31, 2005. Until that time, this final rule establishes the time-limited tolerances expiring December 31, 2005 in order to allow for the completion and then subsequent Agency review and evaluation of these studies.

There are a large number of studies that remain outstanding. However, the data gaps are not as extensive as it would seem. The nature of the residue in corn was previously found to be understood based on the published metabolism studies for a structurally similar chemical. Since the Agency's understanding of the plant metabolism of dichlormid was derived from an extrapolation from surrogate data, a plant metabolism study in accordance with OPPTS guidelines 860.1300 using dichlormid is required.

For the crop field trials, both pre-and post-emergent data using dichlormid have been provided. More field trials are to be submitted in order to fulfill the guideline requirements.

To account for the incomplete toxicological database, the Agency retained an additional 10X safety factor for infants and children as to acute risk and an additional 30X safety factor as to chronic risk. Once the data gaps have been fulfilled, retention of these safety factors will be evaluated.

Adequate enforcement methodology (gas chromotography) is available to enforce the tolerance expression. The method may be requested from: Calvin Furlow, PIRIB, IRSD (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 305-5229; e-mail address: furlow.calvin@epa.gov.

There is neither a Codex proposal, nor Canadian or Mexican limits for residues of dichlormid in corn commodities.

Therefore, the time-limited tolerances are re-established for residues of the inert ingredient herbicide safener, dichlormid, N,N -diallyldichloracetamide in corn, field, forage; corn, field, grain; corn, field, stover; corn, pop, grain; and corn, pop, stover at a tolerance level of 0.05 ppm. These tolerances will expire and be revoked on December 31, 2005. These tolerances are being established on a time-limited basis due to an incomplete datebase. The following toxicological data gaps (OPPTS Harmonized Test Guideline) have been identified:

• Chronic Feeding Study in Dogs, Test Guidelines 870.4100.

• 2-Generation Reporductive Study in Rats, Test Guideline 870.3900.

• General Metabolism Study, Test Guideline 870.6200.

• Subchronic Neurotoxicity Study, Test Guideline 870.6200.

The following product and residue chemistry data were also identified:

• Product Chemistry Data-color, Test Guideline 830.6302; physical state, Test Guideline 830.6303; odor, 830.6304; melting point, Test Guideline 830.7200; boiling point, Test Guideline 830.7220; water solubility, Test Guideline 830.7840; and stability, Test Gudieline 830.6313.

• Plant Metabolism Study, Test Guideline 860.1300.

• Animal Metablism Studies, Test Guideline 860.1300.

• Crop Field Trials, 860.1500.

• Rotational Crop Study, Test Guideline 860.1850 (Confined Study.

The toxicological product chemistry and residue chemistry data gaps as identified must be addressed before a permanent tolerance can be established.

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 ID number OPP-2002-0149 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 October 7, 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 VI.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 ID number OPP-2002-0149, 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 establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. 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 petition under FFDCA section 408(d), 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 Report and Order (R&O) in IB Docket No. 96-132, FCC 02-24, adopted January 28, 2002 and released February 7, 2002. The complete text of this R&O is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW, Room CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW, Room CY-B402, Washington, DC 20554, telephone (202) 863-2893, facsimile (202) 863-2898 or via email qualexint@aol.com . It is also available on the Commission's website at http://www.fcc.gov.

1. In the Notice of Proposed Rulemaking (NPRM), FCC 96-259 published at 61 FR 40772, August 6, 1996 preceding this R&O, the Commission asked for comment on the possibility of assigning up to a maximum of 28 megahertz of internationally coordinated upper and lower L-band spectrum to Motient. Additionally, the Commission asked for comment on whether any spectrum coordinated for U.S. use above 28 megahertz should be made available to future MSS applicants. The Commission also proposed a series of technical and operational standards designed to prevent new MSS operations from interfering with maritime distress and safety communications in the lower L-band.

2. To support providing Motient with spectrum in the lower L-band, the Commission explained that Motient was originally authorized to use 28 megahertz of spectrum in the upper L-band for MSS service. In the original Licensing Order the Commission required 12 applicants to form a single MSS operating consortium. The Commission based this requirement on the twelve applicants before it and the Commission's finding that there was only sufficient spectrum available to support one system. Subsequently, however, during on-going yearly international coordination meetings, the Commission has been unable to secure sufficient spectrum to support Motient's authorized system in the upper L-band. In the NPRM, the Commission also noted that the on-going international coordination in the lower L-band was similarly difficult.

3. Based on the inability to coordinate sufficient spectrum, the Commission tentatively concluded that Motient should be authorized to operate across the upper and lower L-band frequencies in order to support its authorized MSS system. Thus, it proposed that Motient be assigned up to 28 megahertz from the entire L-band. That amount of spectrum represented the optimum system that Motient hoped to operate.

4. In 1985, the Commission had estimated that an MSS system would likely require a minimum of 20 megahertz of spectrum to be viable. In the NPRM the Commission asked whether its estimate was still valid. The Commission tentatively concluded that there would be sufficient L-band spectrum available to support only one U.S. MSS system. Accordingly, the Commission proposed to assign the lower L-band frequencies it was able to coordinate for use by U.S. licensed space stations to Motient by modifying its existing license, pursuant to section 316 of the Communications Act (“the Act”), enabling Motient to use these frequencies in lieu of those from the upper portion of the L-band that the U.S. was unable to coordinate for domestic use. The Commission also tentatively concluded that reassignment is within the authority invested in the Commission by sections 303 and 4(i) of the Act to adopt regulations to carry out its spectrum management obligations.

5. To address issues pertaining to maritime distress and safety in the lower L-band, the Commission noted that the L-band is allocated for generic MSS. That is, aeronautical mobile-satellite service (“AMSS”), land mobile-satellite service (“LMSS”), and maritime mobile-satellite service (“MMSS”) are allowed to share portions of the L-band for non-safety related communication on an equal basis. Operation within the Global Maritime Distress and Safety System (“GMDSS”), however, has priority access with real-time preemptive capability over all other mobile-satellite communications operating in the 1530-1544 MHz and the 1626.5-1645.5 MHz portions of the lower L-band. Therefore, to protect and maintain the integrity of safety and distress maritime communications, both internationally and domestically, the Commission proposed to establish and codify priority access and preemption standards and policies for MSS systems operating in these portions of the lower L-band. The Commission also proposed to allow mobile earth terminal data message transmissions to be half-duplex, rather than requiring full-duplex, and sought comment as to the maximum amount of time that transmissions should be permitted. The Commission tentatively concluded that adopting a maximum time limit on data message transmissions and proposed priority access and real-time preemption standards for distress and safety communication would provide sufficient priority to comply with the requirements of U.S. Footnote 315 of the U.S. Table of Frequency Allocations.

6. Nine parties filed initial comments in response to the NPRM. Five of these parties also filed reply comments. Nearly all of the comments address the proposals related to the assignment of lower L-band frequencies to Motient. Only Motient and the U.S. Coast Guard commented on the proposals concerning maritime safety and distress priority and preemptive access.

7. One of the concerns giving rise to the NPRM was that international coordination difficulties precluded securing sufficient spectrum in the upper L-band to support Motient's authorized system. Moreover, at the time of the NPRM, based on on-going international coordination meetings, the Commission believed the likelihood of securing more than 20 megahertz from the entire L-band (both upper and lower) for U.S. use was remote. Two parties, Celsat and LQL have taken issue with this assumption, contending that subsequent events have altered the L-band assignment process. They point out that shortly after the release of the NPRM the Commission issued a news release announcing that Inmarsat, Canada, Mexico, the Russian Federation, and the United States, the operators currently coordinating spectrum for a variety of MSS systems in the vicinity of North America, had signed a Memorandum of Understanding (“MOU”) in Mexico City. The news release stated, in part, that the MOU specified that “[s]pectrum allocations to individual operators will be reviewed annually on the basis of actual usage and short-term projections of future need.” LQL interprets the news release as providing the United States with what LQL characterizes as a “dynamic allocation” across the upper and lower L-band as determined by actual traffic.

8. We believe that the coordination process established in Mexico City has worked well to ensure equitable sharing of the L-band spectrum. It has not, however, altered the fact that the L-band is in high demand. All five MSS operators have claimed to need more spectrum than is currently assigned to them and some seek amounts that exceed availability. Consequently, the international coordination difficulties remain in negotiating sufficient spectrum to enable Motient to establish and operate a viable MSS system.

9. In the NPRM, the Commission gave three bases to support its proposal to modify Motient's license to allow it to operate over frequencies in the lower and upper L-band. First, MSS is well suited to serve areas that are too remote or sparsely populated to receive service from terrestrial land mobile systems. Second, since launching its first satellite in 1995, Motient was in the best position to provide MSS in the U.S. in the shortest amount of time. Third, and most importantly, a license issued by the Commission must include a reasonable expectation that spectrum will be available to enable the licensee to implement the system that it has proposed and has been authorized to operate. Each of these justifications has generated comments.

10. No commenter disagreed with the Commission's assertion that MSS systems are particularly well suited for providing mobile communication services to areas that are not being adequately served by terrestrial radio facilities. Commenters left undisputed the fact that despite the growth of terrestrial radio services such as cellular radio and Personal Communications Services (“PCS”), large areas of the nation remain without basic telecommunications services. Commenters agree that MSS provides the technical capability to meet the needs of people in remote areas for public safety, business and personal communications and that MSS operations should be supported in the L-band.

11. In the NPRM, the Commission concluded that Motient was best suited to provide expeditious service to the public because one of its three authorized satellites is in operation. Our experience has been that it normally takes licensees three years to construct, launch and begin operations of a geostationary satellite. Motient concurs with this assessment. Motorola/Iridium disagrees. Motorola/Iridium contends that Motient is the only operational MSS system because the Commission has refused to accept other MSS applications. Motorola/Iridium submits that this action has been prejudicial to it and to other potential MSS applicants. What Motorola/Iridium fails to address in its argument, however, is that the Commission chose not to invite a new processing round because there was not sufficient spectrum to accommodate the existing licensed systems. Moreover, in this particular coordination process, where spectrum allocation is based on actual usage and short-term projections of future need, an operating system is essential. Without such a system, the available spectrum would have been allocated to non-U.S. systems and none would be available. Thus, under these circumstances, Motorola/Iridium's argument is not persuasive.

12. LQL, on the other hand, contends that the Commission has not adequately established a connection between expediting service and adding frequencies to Motient's system. It points out that Motient has failed to meet the deadlines for launching its other two satellites. LQL therefore argues that there are no rational grounds for concluding that Motient would use the additional spectrum that we propose to assign to it before another licensed system could be placed in operation. We disagree. Given that Motient has proposed an MSS system designed to use 28 megahertz of spectrum, requiring it to fully construct this system when the spectrum for which it was designed is not available would not advance the public interest. Moreover, given the lack of available spectrum, there is no indication that the expense of constructing, launching and operating these satellites would improve the services that Motient is currently providing. And, as pointed out above, waiting for another system to be placed in operation would have resulted in no frequencies being available. Thus, LQL's comments have not altered our conclusion that Motient is best suited to serve the U.S. MSS market using this portion of the L-band.

13. The Commission's proposal to allow Motient to have initial access to the lower L-band spectrum was based on our conclusion that, unless modified for overriding public interest reasons, licensees should be entitled to a reasonable expectation that adequate spectrum will be made available to support their authorized systems. Motient supports this determination. Other commenters, however, argue that satellite authorizations are conditioned upon, and subject to, international coordination. These commenters argue that there is no basis for providing Motient spectrum outside of what it has been able to coordinate though the normal coordination process in the upper L-band.

14. The Commission also stated in the NPRM that the Commission can, and shall, take reasonable and appropriate steps to ensure that licensees have a fair opportunity to compete. The commenters all agreed that the Commission is entrusted with this responsibility. In order for an MSS licensee to compete, it must have sufficient spectrum to provide acceptable service at a reasonable price. Previously, the Commission estimated that a minimum of 20 megahertz of L-band spectrum is necessary for an economically viable domestic MSS system in this frequency band. The NPRM sought comment on whether this amount is still needed to enable an MSS licensee to establish and operate a competitive system.

15. Commenters contend that based on the development of satellite and mobile radio technology, it is now possible to operate a profitable MSS system using less than 20 megahertz of spectrum. Commenters state that new MSS systems using state-of-the-art technology are dramatically more efficient than Motient's system and provide a higher level of satellite services, including service to hand-held mobile terminals. RSC, for instance, points out that there are three competing geostationary L-band systems under construction in Asia, and two other systems that are planned for service in the Middle East and nearby regions. In this regard, Lockheed Martin indicates that it is the prime contractor for the Asia Cellular Satellite (“ACeS”) system, which is one of the systems identified by RSC. ACeS is a satellite-based, hand-held, digital mobile telecommunications system that is designed to provide service to subscribers in the Asia-Pacific region. Lockheed Martin maintains that use of the latest technological developments in its design of the ACeS satellite and associated ground equipment for the ACeS system enables it to achieve new levels of spectral efficiency and circuit capability. In fact, Lockheed Martin professes that the ACeS system may be up to 20 times more spectrum efficient than Motient's first generation MSS system because of its extensive reliance on frequency reuse. Accordingly, Lockheed Martin declares that as little as five megahertz of spectrum can now simultaneously support up to 16,000 MSS simplex circuits and ten megahertz of spectrum can support the same number of full duplex circuits. Both Motorola/Iridium and RSC support Lockheed Martin's assessments. Motient concedes that a multiple-beam satellite, such as the one Lockheed Martin has designed for the ACeS MSS system, would probably be three times more spectrum efficient than Motient's existing satellite, and that efficiency gains that the ACeS system achieves through the employment of newer voice coding and compression algorithms (“vocoders”) are likely to result in a 20 percent reduction in Motient's spectrum usage.

16. We recognize that technical strides have been made since 1987, when MSS was first authorized in the L-band. The Commission then determined that there was insufficient spectrum to support the applications it had on file for this service. With this in mind, the Commission required the applicants to form a consortium. The consortium was the only licensee in the upper L-band. In the 1996 NPRM, the Commission concluded that Motient would need up to the first 28 megahertz of available L-band spectrum to operate an optimum MSS system. It also concluded that an economically viable MSS system designed to the technical specifications on file must have a minimum of 20 megahertz of spectrum. Based on the minimum spectrum estimation and ongoing international coordination meetings, the Commission concluded that opening the lower L-band for competing applications was unlikely. At the time the NPRM was adopted, the Commission did not believe that there would be sufficient spectrum to accommodate more than Motient's system in the entire L-band. Thus, it tentatively concluded that in the lower L-band Motient should be authorized to use the balance of the available 28 megahertz for which it is authorized.

17. Section 316 of the Act provides the Commission with authority to modify an existing license when necessary. LQL challenges the Commission's authority to use Section 316 of the Act to modify Motient's current license to enable it to use lower L-band frequencies due to our unsuccessful attempts to coordinate sufficient upper L-band spectrum to support the system the Commission authorized Motient to operate. According to LQL, Section 316 does not apply to Motient's situation. LQL claims that the application of Section 316 is limited to those cases in which the Commission's action has the effect of modifying an “unconditional right” in a license. According to LQL, that has not been done in the case before us. LQL argues that Motient's authorization does not encompass an unconditional right to operate in the lower L-band. LQL concludes that since we are not modifying Motient's existing license, Section 316 is not applicable. We disagree. As Motient correctly points out, we are modifying its assignment of specific frequencies in the upper L-band.

18. The language of section 316 is clear and unequivocal: “[A]ny station license * * * may be modified by the Commission * * * if in the judgment of the Commission such action will promote the public interest, convenience, and necessity.” The original license authorized Motient to use the upper L-band frequencies. Now, because many of these frequencies are not available because of international coordination, we intend to modify Motient's license. If and when the spectrum becomes available, we will realign frequencies that are unavailable in the upper L-band and include frequencies in the lower L-band, up to the 20 megahertz that we intend to authorize to Motient. This action allows Motient to aggregate up to 20 megahertz of L-band spectrum in which to operate its current MSS system and promotes the public interest, convenience and necessity by providing Motient sufficient spectrum to provide service to many of the nation's rual and remote areas.

19. Because we are adopting the NPRM proposal to modify Motient's license pursuant to section 316 of the Act, we will dismiss its 1993 application in which Motient requests authority to use spectrum in the lower L-band. Accordingly, the concerns regarding the acceptance of Motient's 1993 application are now moot. New applications for L-band spectrum, however, may be filed once Motient has acquired the 20 megahertz that we are now authorizing.

20. We continue to believe, therefore, that the Commission has ample authority to modify Motient's license as discussed above and that this action best serves the public interest. MSS provides service to areas in the United States that would otherwise go unserved. Motient is the U.S. company in the best position in the L-band to provide this service and it is entitled to a reasonable expectation that enough spectrum will be coordinated to support its authorized system. Commenters have not persuasively demonstrated that a different outcome is warranted. Thus Motient will be granted use of the first 20 megahertz of internationally coordinated spectrum in the L-band.

21. Footnote US315 to § 2.106 of the Commission's rules states that lower L-band MSS systems may not interfere with maritime mobile-satellite (MMSS) distress and safety communications that are also operating in these frequencies. Footnote US315 protects MMSS distress and safety communications, such as GMDSS, domestically by providing priority access and real-time preemptive capability for distress and safety communications. To ensure MSS compliance with the provisions of Footnote US315, the Commission proposed establishing priority access and preemption standards and policies for mobile-satellite service in the lower L-band and incorporating these standards into the Commission's rules. The proposed system and terminal requirements are delineated in Appendix B of the NPRM. The Commission sought comment on the proposed standards in Appendix B, and on the maximum number of seconds to which half-duplex data MET transmissions should be limited. The proposed requirements are derived from similar requirements that the Commission adopted in connection with the operation of aeronautical distress and safety-related communication in the upper L-band. These technical requirements were formulated in order to comply with the provisions of Footnote US308 for priority and preemptive access for aeronautical safety communications. The Commission also proposed in the NPRM to continue to allow U.S.-licensed MSS systems to operate half-duplex Inmarsat “Standard C” type or technically similar mobile earth terminals (“METs”) in the lower L-band. Additionally, the Commission proposed establishing a time limit for data messages transmitted in half-duplex from METs in order to protect the integrity of maritime safety and distress communications in the lower L-band. At the end of this period, the MES could be commanded to pause by the LES and the higher priority traffic could be placed ahead of any further transmissions. In cases where priority traffic is intended for the MES that is transmitting, it could be commanded to stop transmitting and receive the priority traffic.

22. The Commission stated that the proposal to allow U.S.-licensed MSS systems to operate in half-duplex with appropriate restraints could provide sufficient distress and safety communication priority to comply with the intent of Footnote US315. The NPRM explained that maritime distress and safety services in the lower L-band have been operational for years and are sufficiently dynamic and robust to accommodate the operation of half-duplex METs. In this regard, it also noted that Inmarsat and others operate in half-duplex “Standard C” or other technically similar data METs with no apparent harm to maritime safety and distress communications. Motient offers some suggestions regarding the proposed system and terminal requirements specified in Appendix B of the NPRM. Motient maintains that some of the provisions in Appendix B are ambiguous. Its principal concerns are with Requirements Nos. 2 and 8 for MES and Requirement No. 9 for LES. Specifically, Motient argues that these requirements obligate terminals to be capable of being automatically interrupted during a transmission to receive a higher priority incoming call. Motient says that a more reasonable approach to a busy signal will typically be to try again momentarily. It explains that automatic preemption works well in the case of packet data or data message communications systems. In those cases, Motient says, messages or packets from a ship may be queued, either in the MES or in other shipboard communications equipment. It adds that a high priority message or packet could then be placed at the head of the queue, and, if necessary preempt an ongoing outbound transmission. Motient also advises that its data services queue messages for processing, distribution, and transmission, so that those services have the capabilities specified in Appendix B of the NPRM.

23. It is apparent from the U.S. Coast Guard's comments that it believes that the maritime distress and safety services in the lower L-band are not as dynamic and robust as described in the NPRM. The fact that the U.S. Coast Guard alleges that use of half-duplex METs has resulted in significant delays in the communication of maritime safety messages, despite the fact that the number of ship-borne earth station terminals has been relatively small, is of note. Consequently, we are concerned that as more vessels install satellite equipment and begin using their terminals for longer periods the situation will become more severe. Although we do not know exactly how many vessels will ultimately be affected, the U.S. Coast Guard estimates that as of February 1, 1999, between 35,000 and 50,000 ships engaged in international voyages were required to carry GMDSS equipment. The U.S. Coast Guard also states that there is a fleet of approximately 30,000 American commercial fishermen that carry this equipment. Finally, the U.S. Coast Guard predicts additional demand for maritime distress and safety communications as over one million radio-equipped recreational craft begin to install marine satellite devices.

24. In addition to our concern regarding an increase in maritime distress and safety traffic, we believe it is reasonable to expect that the generic use of mobile terminals by Motient, and possibly additional systems, will increase as well. It is reasonable to assume that as mobile terminal usage increases so will channel congestion and the reliability of maritime distress and safety communications will diminish. Because of the importance of safety-related communications, we will take the U.S. Coast Guard's recommendation and therefore we decline to waive the provisions of Footnote US315 for half-duplex METs in the lower L-band on a permanent basis.

25. Accordingly, until a record on this issue is more fully developed, we decline to adopt a definite time limit for transmissions by half-duplex terminals. Parties may, of course, file a petition for rulemaking to address the imposition of a definite time limit if, and when there is sufficient evidence to demonstrate what the limit should be. Until that time, the Commission and the National Telecommunications and Information Administration (NTIA) will continue to review applications for half-duplex MES terminal operational authority (with requests for waiver of Footnote US315, as appropriate) on a case-by-case basis. NTIA indicated to the Commission, in its case-by-case review of recent applications to operate half-duplex MES terminals, that if a MES terminal is capable of, among other things, ceasing transmissions and inhibiting further transmissions within one second, that terminal would be considered to meet the real time preemption requirements. We anticipate that new licenses to operate half-duplex terminals will be similarly conditioned, or limited by waiver of Footnote US315 as in past practice, to ensure that GMDSS in the frequency band remain protected.

26. In the NPRM, the Commission specifically sought comment only on the proposed standards in Appendix B and on the maximum number of seconds to which half-duplex data MET transmissions should be limited in order to ensure the integrity of maritime distress and safety communications. Motient, however, has advanced several system design proposals for providing priority and preemptive access for maritime distress and safety communications. We believe that Motient's suggestions are beyond the scope of this proceeding. Matters such as how a licensee designs its system to comport with our rules are properly left to satellite system operators. Therefore, once Motient finalizes its system design, it can seek to amend its construction and operating authority.

27. Motorola/Iridium raises concerns about interference into its system from out-of-band emissions from Motient METs operating in the lower L-band. In the NPRM, however, the Commission explained that if the lower L-band spectrum coordinated for Motient's operation does not include spectrum at the lower band edge it expects that there will be no adjacent band interference. The Commission also noted that should an interference issue arise, it expects the parties to first attempt to resolve interference issues among themselves. We will address such interference issues only if the parties are unable to reach a solution. Finally, the Commission noted that Inmarsat, Australia, Mexico, Canada, and the Russian Federation are either now or will soon be using terminals having out-of-band emissions similar to the METs operated by Motient. Consequently, the Commission noted that Motorola/Iridium may need to coordinate, worldwide, with all the parties operating at band edge.

28. The Commission also recently authorized several entities to operate mobile earth terminals and land earth stations via Inmarsat satellites to provide domestic and international mobile-satellite service in the L-band. The authorizations were granted pursuant to the ORBIT Act and our DISCO II decision. In the Inmarsat Authorization Order , the Commission stated that the permanent authority for the specified earth stations to communicate on frequencies in the lower L-band granted would not become effective until further action in this Lower L-Band proceeding. In the interim, the Commission granted applicants Special Temporary Authority to operate in the lower L-band subject to further action in the Lower L-band proceeding. It said that if the decision in the Lower L-Band Proceeding does not require modification of the authorizations granted for use of Inmarsat, the authorizations would become effective without further action by the applicants. Our decision in this proceeding requires modification only to the half-duplex terminal the authorizations granted to Comsat Corporation/Mobile Communications (Comsat) and Marinesat Communications Network d/b/s Stratos Communications (Stratos) for use of the Inmarsat system. Accordingly, the authorizations are now permanent. The authorizations recently granted to Comsat and Stratos for 1000 half-duplex terminals, each, are modified by this Order to be limited to a term of two years.

29. 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 “small business concern” under the Small Business Act. A small business concern is one that: (1) Is independently owned and operated; (2) is not dominant in its field or operation; and (3) satisfies any additional criteria established by the Small Business Administration (“SBA”).

30. The Report and Order adopts and incorporates into the Commission's service rules specific operational parameters and technical requirements to ensure that the integrity of maritime distress and safety will not be compromised by mobile satellite service operation in certain portions of the L-band. By this action the Commission is essentially codifying the same conditions that are placed on every mobile satellite service license for operation in these portions of the L-band. There are currently three entities, Motient Services, Inc., TMI Communications and Company, L.P., and the International Maritime Satellite Organization (“Inmarsat”), that are authorized to provide L-band mobile satellite service in the United States. None comes within the definition of small entity. We therefore certify that the adoption of this Report and Order will not have a significant economic impact on a substantial number of small entities. The Commission will send a copy of the Report 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 Report 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 .

31. Pursuant to sections 1, 2, 4(i), 303(c), 303(f), 303(g), and 303(r), of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152,154(i), 303(c), 303(f), 303(g), 303(r), parts 2 and 25 of the Commission's rules are amended as specified in rule changes effective September 6, 2002.

This is a summary of the Commission's Report and Order (R&O), IB Docket 98-21, FCC 02-110, adopted April 8, 2002 and released June 13, 2002. The complete text of this Report and Order is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW, Room CY-A257, Washington, DC. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street SW, Room CY-B402, Washington, DC 20554, telephone (202)863-2893, facsimile (202)863-2898 or via email qualexint@aol.com . It is also available on the Commission's website at http://www.fcc.gov.

1. This Report and Order contains new information collections. The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection(s) contained in this Report and Order, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. This Report and Order has been submitted to OMB for review under the emergency clearance provisions of the PRA. Public and agency comments are due September 6, 2002. Emergency clearance is requested no later than September 6, 2002.

2. The Commission, under the normal provisions of the PRA, invites the general public, and other Federal agencies to comment on the information collections contained in this proceeding prior to submitting it to OMB for review. Public and agency comments are due September 6, 2002.

3. Comments should address: (a) Whether the modified collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.

OMB Control Number: 3060-0683.

Title: Direct Broadcast Satellite Service.

Type of Review: Revision of a currently approved collection.

Respondents: Business or other for-profit entities.

Number of Respondents: 6.

Estimated Time Per Response: 1.5-20 hours.

Frequency of Response: On occasion.

Total Annual Burden: 300 hours.

Total Annual Costs: $50,000.

Needs and Uses: The information collected will be used by the Federal Communications Commission as part of the application and licensing process for DBS entities. Specifically, applicants for the DBS service will be required to file their applications to conform to the newly-adopted service rules. Without the newly adopted rules, future DBS applicants do not have rules in effect to file under.

4. The Federal Communications Commission has adopted a Report and Order that revises its rules and policies governing the Direct Broadcast Satellite (“DBS”) service. The Report and Order modifies DBS regulation to more closely reflect the regulation of other satellite services, moves the rules for DBS to part 25 and eliminates part 100.

5. The revisions will simplify the procedures applicable to DBS, eliminate unnecessary filing requirements, and harmonize the DBS licensing process with that of other satellite services. For example, the Report and Order eliminates the DBS-specific foreign ownership limits of § 100.11 of the Commission's rules and apply the statutory foreign ownership provision of section 310(b) of the Communications Act. The Commission also clarifies our geographic service rules to enhance the delivery of DBS service to the States of Alaska and Hawaii. The Report and Order updates and clarifies DBS technical rules, and clarify due diligence rules for DBS providers. In addition, the Commission moves the service-specific DBS auction rules to part 25 and defers to the Commission's general competitive bidding rules. Further, the Commission declines adopting any specific DBS ownership restrictions, but will continue to analyze DBS/DBS ownership issues in the context of assignment and transfer applications on a case-by-case basis.

6. In this Report and Order the Commission retains some DBS specific rules that reflect distinctions between DBS and other satellite services. Specifically, the Report and Order preserves certain specific part 100 rules (i.e. license terms, due diligence and geographic service requirements, competitive bidding, and technical requirements) in part 25 because DBS is a unique satellite service in some respects.

7. In this Report and Order the Commission eliminated § 100.11 of the Commission's rules. In first proposing rules in 1981, the Commission stated that it was seeking to apply an “open and flexible approach” to DBS to “allow the business judgments of individual applicants to shape the character of the service offered.” The Commission stated that it intended to impose on DBS “only those regulatory requirements that [were] expressly mandated by the Communications Act” to afford the DBS service maximum regulatory freedom to develop. In the Report and Order, the Commission stated that although § 100.11, by its literal terms, extends to all DBS providers, subscription as well as broadcast and common carrier, there is no indication, that the Commission, in 1982 when it adopted the rule, meant to impose foreign ownership restrictions on DBS providers that are not subject to the foreign ownership restrictions in section 310(b).

8. The Commission declined to impose specific foreign ownership limitations on DTH-FSS licensees providing subscription service in addition to the statutory limitations in section 310(a) and (b) of the Act. The Commission stated that there are no additional foreign ownership rules for MVPD services provided to subscribers by means of cable or DTH satellite systems, other than those required by statute. The Commission found that adopting foreign ownership rules for DTH-FSS licensees providing subscription services would affect the competitiveness of DBS, DTH and of the MVPD markets, which would be inconsistent with the Commission's efforts to increase competition in the MVPD market. Moreover, the Commission has traditionally taken a deregulatory approach to DTH-FSS and have refrained from imposing unnecessary regulations. In addition, the Commission will apply the requirements set forth in DISCO II in deciding questions of access to the U.S. market by non-U.S. lice DBS providers will remain subject to the relevant statutory requirements of section 310 of the Act.” Thus, all DBS providers will be subject to section 310(a) of the Communications Act and to the relevant sections of Section 310(b) of the Act.

9. The Commission recognizes the importance of establishing DBS as a competitor to cable in the multi-channel video programming distribution market in the States of Hawaii and Alaska. In this Report and Order , the Commission clarifies its geographic service rules to enhance the delivery of DBS service to the States of Alaska and Hawaii. Under current rules, DBS licensees must serve Alaska and Hawaii if technically feasible. In this Report and Order , the Commission recognizes that it is possible to provide service to Hawaii and also to significant portions of Alaska from the 101° W.L orbit location in addition to the 110° W.L. and 119° W.L. orbit locations. Furthermore, the Commission concludes that it is not technically feasible to serve either Alaska or Hawaii from the 61.5° W.L. orbit location. In this Report and Order , the Commission clarifies that DBS operators must offer packages of services in Alaska and Hawaii that are reasonably comparable to what they offer in the contiguous 48 states. In an effort to balance requirements to provide service to all 50 states, and in order to avoid dictating system design or business plans, the Commission declines to specifically define what constitutes full or comparable service although we expect that DBS operators will offer the same level of service to customers throughout all 50 states. Specifically, the Commission clarifies that it will consider a DBS provider to be in compliance with this requirement, contained in § 100.53 of the Commission's rules, only if it offers packages of services in Alaska and Hawaii that are reasonably comparable to what the provider offers in the contiguous 48 states.

10. The Commission does not adopt any specific DBS/cable cross-ownership restrictions. The Commission also deferred this issue to the Cable Ownership Further Notice of Proposed Rulemaking in 66 FR 51905, October 11, 2001. The Commission will analyze DBS/DBS ownership issues in the context of assignment and transfer applications on a case-by-case basis.

11. In December of 2002, the Commission decided to seek further comment on non-conforming uses of DBS spectrum because it appeared that there are a number of orbit locations, particularly those covering only the western part of the U.S., that are not being used to provide DBS service. Under current rules, a DBS licensee, after the first five years, must provide DBS service at least fifty percent of the time. In this Report and Order the Commission concludes that it will allow non-conforming use for all orbital locations, including the western orbital locations, for downlink services that meet the technical requirements for interference protection. The Report and Order allows DBS licensees are free to provide non-conforming services on as many transponders on any of their satellites for as large a fraction of the time as they wish subject to the Commission's other requirements for DBS.

12. The Regulatory Flexibility Act of 1980, as amended (“RFA”), requires that a regulatory flexibility analysis be prepared for notice and comment rule making proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines the term “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”).

13. As required by the RFA, an Initial Regulatory Flexibility Analysis (“IRFA”) was incorporated in the Notice of Proposed Rulemaking (“NPRM”) in IB Docket No. 98-21, 63 FR 11202, March 6, 1998. The Commission sought written public comments on the proposals in the NPRM including comments on the IRFA. There were no comments, which discussed or addressed the IRFA; nor were there comments on the effect of the proposed rules on small businesses. Nonetheless, the Commission considered the potential significant economic impact of the proposed rules on small entities.

14. The Report and Order streamlines and harmonizes the Commission's direct broadcast satellite (“DBS”) service rules with other regulations governing satellite communications. Our objective is to consolidate, where possible, the DBS services rules with the rules for other satellite services and eliminate separate, DBS-specific rules in part 100 of the Commission's rules. Because DBS provides subscription services, DBS falls within the SBA-recognized definitions of “Cable Networks” and “Cable and Other Program Distribution.” These definitions provide that small entities are ones with $11.0 million or less in annual receipts. Small businesses, i.e. ones with less than $11.0 million in annual receipts, do not have the financial ability to become DBS licensees because of the high implementation costs associated with satellite services. Because this is an established service, with limited spectrum and orbital resources for assignment, we estimate that no more than 15 entities will be Commission licensees providing these services. In addition, because of the high implementation costs and the limited spectrum resources we believe that none of the 15 licensees will be small entities. We expect that no small entities will be impacted by this rulemaking. Therefore, we certify that the requirements of the Report and Order will not have a significant economic impact on a substantial number of small entities.

15. The Commission will send a copy of the Report and Order , including a copy of this Final Regulatory Flexibility Certification, in a report to Congress pursuant to the Congressional Review Act. In addition, the Report 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 .

16. Pursuant to sections 4(i), 7(a), 11, 303(c), 303(f), 303(g), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 157(a), 161, 303(c), 303(f), 303(g), 303(r), that the Report and Order is adopted. Part 25 of the Commission's rules is amended as specified in the rule change, effective September 6, 2002.

17. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, Shall send a copy of this Report and Order , including the Final Regulatory Flexibility Certification, in a report to Congress pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A); and shall also send a copy of this Report and Order , including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration. See 5 U.S.C. 605(b).

This is a synopsis of the Commission's Report and Order Amendment of the Television Table of Allotments to Delete Noncommercial Reservation on Channel *16, 482-488 MHz, Pittsburgh, Pennsylvania (“Report and Order”), MM Docket, 01-276, FCC 02-209, adopted July 11, 2002 and released July 18, 2002. The full text of this Report and Order is available for inspection and copying during normal business hours in the FCC Reference Room, Room CY-A257, Portals II, 445 12th Street, SW., Washington, DC, and also may be purchased from the Commission's copy contractor, Vistronix, Inc.

The Report and Order finds that QED remains in financial distress, that it has taken dramatic steps to improve its financial condition, including reducing its workforce by half and selling available assets, and that QED and its auditors both conclude that the sale of WQEX(TV) as a commercial station is crucial to QED's financial recovery. The Report and Order also concludes that the Pittsburgh area can no longer support both WQED(TV) and WQEX(TV), given its population decline, and the downward trend in contributions to QED. On balancing the needs and abilities of QED, given its financial condition and the community from which it derives support, the Commission finds that the continued use of the second channel is no longer necessary to meet the educational, instructional and cultural needs of the Pittsburgh community, especially since upon dereservation and sale of WQEX(TV), and initiation of digital service, QED will be able to substantially increase the amount of free over-the-air educational service.

The Report and Order concludes that QED's circumstances are highly unique and that the public interest would be served by waiving the Commission's policy disfavoring dereservation. The Report and Order also concludes that the record supports waiver of the policy requiring that newly dereserved channels be made available for competing applications.

The Commission has determined that the relevant provisions of the Regulatory Flexibility Act of 1980 do not apply to rule making proceeds to amend the TV and DTV Table of Allotments, §§ 73.606 and 73.622(b). See Certification that Sections 603 and 604 of the Regulatory Flexibility Act Do Not Apply to Rule Making to Amend Sections 73.202(b), 73.504, and 73.606(b) of the Commission's Rules, 46 FR 11549, February 9, 1981.

The Commission further finds that unique public interest considerations and benefits support a waiver of the policy set forth in the Sixth Report and Order requiring that newly dereserved channels be made available for competing applications.

It is further ordered, That pursuant to Section 316(a) of the Communications Act of 1934, as amended, the authorization of WQED Pittsburgh for station WQEX(TV) is modified to specify operation on Channel 16 in lieu of Channel *16.

The genus Pseudocopaeodes in the family Hesperiidae and subfamily Hesperiinae (grass skippers) contains only one species, Pseudocopaeodes eunus. Members of Hesperiidae are called skippers because of their powerful flight. While their flight may be faster than butterflies, they seldom fly far and few species migrate (Scott 1986).

The species Pseudocopaeodes eunus is thought to consist of five subspecies. The Carson wandering skipper ( P. e. obscurus ) is locally distributed in grassland habitats on alkaline substrates in eastern California and western Nevada. P. e. eunus is located in western desert areas of southern California; P. e. alinea is found in eastern desert areas of southern California and in southern Nevada; and P. e. flavus is found in western and central Nevada (Brussard 2000). In 1998, what is believed to be an undescribed fifth subspecies of P. eunus was found in Mono County, California. George Austin of the Nevada State Museum and Historical Society in Las Vegas is working to formally describe this fifth subspecies (Brussard 2000). Except for the Carson wandering skipper, the subspecies of P. eunus do not have universally accepted common names.

The Carson wandering skipper was collected in 1965 by Peter Herlan, Nevada State Museum, at a location north of U.S. Highway 50, Carson City, Nevada. It was first described by George Austin and John Emmel (1998), based on 51 adult specimens. The body is tawny orange above except for a narrow uniform border and black veins near the border at the outer edge of the wing. The upper forewing and hindwing are orange with darker smudging. The lower surface of the hindwings is pale creamy orange with two creamy rays extending from the base of the wing to its margin, and there may be dusky suffusions along the wing veins (MacNeill 1975). Males tend to average 13.1 millimeters (mm) (0.52 inches (in)) in size (ranging from 12.0 to 13.9 mm (0.47 to 0.55 in)) (size is forewing length from base to apex). Females average 14.7 mm (0.58 in) in size, and range from 13.4 to 15.6 mm (0.53 to 0.61 in) from forewing base to apex. The female's dorsal (upper) surface is similar to the male's but with heavier dusting on the discal (relating to a disk) area of the hindwing. The female's ventral surface (undersurface of the abdomen) is similar in appearance to the male's (Austin and Emmel 1998).

The Carson wandering skipper can be distinguished from the other subspecies of Pseudocopaeodes eunus by a combination of several characteristics. The Carson wandering skipper is browner and less intensely orange on its dorsal surface, with thicker black coloring along the veins, outer margin, and on both basal surfaces; and it is duller, overall, with an expanse of bright yellow and orange ground color, especially on the ventral surface, interrupted by broadly darkened veins (Austin and Emmel 1998).

Carson wandering skipper females lay their cream-colored eggs on salt grass ( Distichlis spicata (L.) Greene) (Hickman 1993), the larval host plant for the subspecies (Garth and Tilden 1986; Scott 1986). This is a common plant species in the saltbush-greasewood community of the intermountain west. Salt grass usually occurs where the water table is high enough to keep its roots saturated for most of the year (West 1988, as cited in Brussard et al. 1998).

No other observations have been made of the early life stages of the Carson wandering skipper. However, the Carson wandering skipper's life cycle is likely similar to other species of Hesperiinae. Larvae (immature, wingless, often worm-like form) of the subfamily Hesperiinae live in silked-leaf nests, and some species make their nests partially underground. Larvae are usually green or tan and have a dark head and black collar. Pupae (intermediate stage between larvae and adult) generally rest in the nest, and larvae generally hibernate (Scott 1986). Minno (1994) described a last instar (stage between molts) larvae and a pupa of Pseudocopaeodes eunus, based on one specimen of each collected in California. Some larvae may be able to extend their period of diapause (period of dormancy) for more than one season depending on the individual and environmental conditions (Dr. Peter Brussard, University of Nevada, Reno, pers. comm., 2001). Carson wandering skippers may differ from other P. eunus in producing only one brood per year during June to mid-July (Austin and Emmel 1998).

The other subspecies produce a second brood in late July to late September (Austin and Emmel 1998). Sites occupied by the Carson wandering skipper have been searched during August and September and a second brood has not been found (Austin and Emmel 1998; Brussard et al. 1999). However, additional research is needed to confirm that the Carson wandering skipper produces only one brood per year.

Little is known about the specific habitat requirements of the Carson wandering skipper, beyond the similarities recognized among known locations of this subspecies. As a result, the habitat requirements stated could apply to the species as a whole (Brussard et al. 1999). Habitat requirements for butterflies in general include: (1) Presence of a larval host plant; (2) appropriate thermal environment for larval development and diapause, and adult mate location and oviposition (to lay eggs); and (3) a nectar source (Brussard et al. 1999). Based on commonalities of known, occupied sites, suitable habitat for the Carson wandering skipper has the following characteristics: elevation of less than 1,524 meters (5,000 feet); located east of the Sierra Nevada; presence of salt grass; open areas near springs or water; and geothermal activity.

There are no data in the literature on the micro-habitat requirements of the Carson wandering skipper (Brussard et al. 1999). However, it is likely that suitable larval habitat is related to the water table. Many salt grass areas are inundated in the spring, and larvae do not develop under water. During wet years, larval survival depends on salt grass areas being above standing water. In dry years, survival is probably related to the timing of the host plant senescence (aging). Therefore, micro-topographic variation (slight irregularities of a land surface) is probably important for larval survival because it provides a greater variety of appropriate habitat over time (Brussard et al. 1999). Since the few historic collections of the Carson wandering skipper have been near hot springs, it is possible this subspecies may require the higher water table or ground temperatures associated with these areas to provide the appropriate temperatures for successful larval development (Brussard et al. 1999).

Adult Carson wandering skippers require nectar for food. Adults of all the species in the grass skipper subfamily seem to visit flowers, and sap-feeding is absent or rare (Scott 1986). There are no known observations of the Carson wandering skipper utilizing mud or other substances to obtain nutrients (P. Brussard, pers. comm., 2002a). Few plants that can serve as nectar sources grow in the highly alkaline soils occupied by salt grass. For a salt grass area to be appropriate habitat for the Carson wandering skipper, an appropriate nectar source must be present and in bloom during the flight season. Plant species known to be used by the Carson wandering skipper for nectar include a mustard ( Thelypodium crispum ), racemose golden-weed ( Pyrrocoma racemosus ), and slender birds-foot trefoil ( Lotus tenuis ) (Brussard et al. 1999). If alkaline-tolerant plant species are not present, but there is a fresh-water source to support alkaline-intolerant nectar sources adjacent to the larval host plant, the area may provide suitable habitat (Brussard et al. 1999).

No information is available on historic population numbers of the Carson wandering skipper. It is possible that a fairly large population of the subspecies occurred from the Carson Hot Springs site to the Carson River. Outflow from the springs likely supported a water table high enough for salt grass and a variety of nectar sources to grow. Urban development, water diversions, and wetland manipulations have eliminated most of the habitat type in this area (Brussard 2000).

Likewise, it is possible that appropriate habitat once existed for the Carson wandering skipper between the existing populations in Lassen County, California, and Washoe County, Nevada (P. Brussard, pers. comm., 2001). The population locations are approximately 120 kilometers (km) (75 miles (mi)) apart, and while the dispersal capability of the Carson wandering skipper is unknown, it is unlikely that any current genetic exchange occurs between the two populations. Over time, the habitat between the two populations has become unsuitable and fragmented due to agriculture and development, and the two populations have become isolated from one another. The subspecies likely represents a remnant of a more widely distributed complex of populations in the western Lahontan basin (Brussard et al. 1999).

In 1998, collections of four of the Pseudocopaeodes eunus subspecies were made for a genetic study by University of Nevada-Reno (UNR) researchers (Brussard et al. 1999). In addition to collections made of the Carson wandering skipper at the Washoe County site (24) and the Lassen County site (25), individuals of three other P. eunus subspecies (173) were also collected. P. e. eunus individuals were not collected due to their scarcity. Genetic analysis was based on an analysis of allozyme ( i.e., protein) variation (Brussard et al. 1999). Levels of heterozygosity (genetic variability) were low in all but two populations of P. eunus, and the average heterozygosity over the nine populations was also low. The low levels of heterozygosity in many of the populations is likely due to repeated extirpation events, recolonizations, and population and genetic bottlenecks throughout the Holocene geologic period (beginning 10,000 years ago) to the present time (Brussard et al. 1999).

Historically, population locations included the type locality found near the Carson Hot Springs in Carson City, Carson City County, NV, and one other site in Lassen County, CA. When described in Austin and Emmel (1998), specimens from two additional sites, Dechambean Hot Springs at Mono Lake and Hot Springs, Mono County, CA, were assigned, with uncertainty due to their small numbers, to the Carson wandering skipper subspecies. Based on 1998 surveys by Brussard et al. (1999), these Mono County specimens would be more appropriately assigned to the currently undescribed subspecies (George Austin, Nevada State Museum and Historical Society, pers. comm., 2001).

Surveys conducted in 1997 in the vicinity of Carson City, and in 1998 throughout potential, suitable habitat in Nevada and California, found two new nectar sites occupied by the Carson wandering skipper. One site was located in Washoe County, NV, and the other site (two locations) was found in Lassen County, CA. The site in Lassen County could be a rediscovery of the area where Carson wandering skippers were collected in the 1970s; however, the collection record is too vague to be certain (P. Brussard, pers. comm., 2001). Despite additional, more limited attempts at finding other populations in 2000 and 2001, none have been found (P. Brussard, pers. comm., 2000; Rebecca Niell, UNR, pers. comm., 2001). While results of the surveys conducted in 2001 for the other subspecies of Pseudocopaeodes eunus are still pending, no new Carson wandering skipper populations were found during these surveys (R. Niell, pers. comm., 2002).

The Carson City site was surveyed for the Carson wandering skipper by the UNR from 1997 to 2001. Only five individuals (four males and one female) were observed during surveys in June 1997. One possible sighting of a Carson wandering skipper occurred at a project site in 1998 (Brussard et al. 1999). No individuals were observed at this site in 1999 or 2000 (P. Brussard, pers. comm., 2000). In 2001, searches were again conducted with no individuals observed (R. Niell, pers. comm., 2001). Habitat changes resulting from drainage manipulations for residential and commercial development are likely responsible for this possible extirpation (Brussard et al. 1999). Construction of a freeway bypass will eliminate and fragment the remaining habitat (5 ha (12 ac)) of the Carson wandering skipper at this site.

An area just south of the Carson City site was also surveyed in 1997 and 1998. Twelve hectares (ha) (30 acres (ac)) of potential habitat were present (Paul Frost, Nevada Department of Transportation (NDOT), in litt. , 1998), however, no Carson wandering skippers were found during the surveys (Brussard et al. 1999). Approximately 5 ha (12 ac) of this potential habitat will be impacted by the construction of the Carson Highway 395 bypass (Alan Jenne, NDOT, pers. comm., 1999). Brussard et al. (1997) found no other suitable habitat in the vicinity of Carson City in 1997.

Because of habitat destruction, degradation, and fragmentation, the Carson wandering skipper has probably been extirpated from the Carson City site.

The nectar site in Washoe County occurs on Bureau of Land Management (BLM) administered lands and adjacent private lands. This nectar site is estimated to be about 10 to 12 ha (25 to 30 ac), with approximately half of the site occurring on BLM lands and half on private lands (Brussard et al. 1999). The nectar source at this site (racemose golden-weed) is abundant, as is salt grass. A few Carson wandering skippers were seen approximately 1.6 km (1 mi) northeast of the nectar site. This suggests the Carson wandering skipper may occur in small numbers elsewhere in adjacent areas (Brussard et al. 1999). Surveys were not conducted in 1999 or 2000 at this site. In 2001, searches of this area were made to confirm the Carson wandering skipper's presence. Five individuals were found at the nectar site on BLM lands; private lands were not searched (Virginia Rivers, Truckee Meadows Community College, pers. comm., 2001).

Two locations where the subspecies is found in Lassen County occur approximately 8 km (5 mi) apart. One location occurs on public lands managed by the California Department of Fish and Game (CDFG property). Another location is found on both private and public lands (private/public property). In 1998, two individuals were observed on the CDFG property, while several individuals were observed at a nectar site less than 2 ha (5 ac) in size on the private/public property. UNR did not conduct surveys at either of these locations in 1999. Surveys were conducted in 2000 and, while several individuals were seen on the private/public property nectar site location, none were seen on the CDFG property. Salt grass is abundant in the surrounding area of the private/public property but the attraction appears to be the nectar source, which is slender birds-foot trefoil. In 2001, searches were conducted to confirm the Carson wandering skipper's presence. A few sightings (three one day and four on another day) were observed on the private/public property nectar site, but again, none were observed on the CDFG property (V. Rivers, pers. comm., 2001).

On May 22, 1984, we published an invertebrate wildlife Notice of Review in the Federal Register (49 FR 21664) designating Pseudocopaeodes eunus eunus as a category 2 candidate. Category 2 candidates were those species for which we had information indicating that listing may be appropriate, but for which additional information was needed to support the preparation of a proposed rule. The entity now known as the Carson wandering skipper was included in P. e. eunus; however, in early 1995, we were informed by Mr. George Austin that the Carson wandering skipper was a distinct, undescribed subspecies (G. Austin, pers. comm., 1995). In the February 28, 1996, Notice of Review (61 FR 7596), we discontinued the use of multiple candidate categories and considered the former category 1 candidates as simply “candidates” for listing purposes. The Carson wandering skipper was removed from the candidate list at that time.

Following an updated assessment of the status of the Carson wandering skipper and its vulnerability to threats in 1998, we included this taxon as a candidate species in the Notice of Review published in the Federal Register on October 25, 1999 (64 FR 57533), with a listing priority number of 12.

A petition dated November 9, 2000, from Mr. Scott Hoffman Black, Executive Director, The Xerces Society, and received by the Service on November 10, 2000, requested that we emergency list the Carson wandering skipper as an endangered species throughout its range, and designate critical habitat concurrent with the listing. We responded in a letter dated February 20, 2001, that we would not publish a petition finding for the Carson wandering skipper because it was already listed as a candidate species in the most recent Notice of Review (64 FR 57533). This meant that we had already determined that listing was warranted for the species. We indicated we would continue to monitor the status of the Carson wandering skipper, and if an emergency listing was warranted, we would act accordingly, or list the subspecies when the action was not precluded by higher priorities.

In addition, the petitioner had also requested emergency listing of the entire species. We responded in our February 20, 2001, letter to the petitioner that we did not believe that an emergency situation existed at the time for the remaining subspecies. Surveys for Pseudocopaeodes eunus spp. were conducted in 1998 throughout potential, suitable habitat in Nevada and California (Brussard et al. 1999). Of the 78 sites (48 new; 30 historic) visited, P. eunus spp. were found at 14 sites. Of the 30 historic sites, P. eunus spp. were found at 8 sites. Seven areas (2 in Nevada; 5 in California) which were historic sites for these subspecies were not visited. We contracted with UNR to have additional status surveys conducted in 2001 for these other subspecies of P. eunus , and results of these surveys are pending. These surveys will assist in determining their status, and if we find that a listing of the remaining subspecies is warranted, we will act accordingly.

On August 28, 2001, we reached an agreement with the Center for Biological Diversity, California Native Plant Society, Southern Appalachian Biodiversity Project, and Foundation for Global Sustainability to complete work on a number of species proposed for listing. Under this “miniglobal” agreement, we agreed to issue several final listing decisions, propose a number of other species for listing, and review three species for emergency listing, including the Carson wandering skipper ( Center for Biological Diversity, et al. v. Norton , Civ. No. 01-2063 (JR) (D.D.C.), entered by the court on October 2, 2001).

The Carson wandering skipper was included in the October 30, 2001, candidate Notice of Review (66 FR 54808), but with a listing priority number change from a 12 to a 3. We made this change because we have been unsuccessful implementing actions outlined in a draft conservation plan for the subspecies and two additional threats appear imminent. These threats include: (1) A proposed water exportation project in the vicinity of the Washoe County site that is a potential threat to the subspecies and its habitat; and (2) tall whitetop ( Lepidium latifolium ), a nonnative invasive plant, becoming established at the Lassen County site and is a threat to the subspecies' nectar source.

On November 29, 2001, we issued an emergency rule listing the Carson wandering skipper as an endangered species because we found that a number of threats constituted immediate and significant risk to the subspecies (66 FR 59537). A proposed rule to list the Carson wandering skipper was published in the Federal Register concurrently with the emergency rule (66 FR 59550). The proposed rule opened a 60-day comment period which closed on January 28, 2002.

On May 7, 2002, we reopened the public comment period to allow additional time for all interested parties to submit written comments on the proposal, and to give notice of a public informational meeting (67 FR 30645). The comment period was open for 30 days and closed June 6, 2002.

The Carson wandering skipper was included in the Candidate Notice of Review (67 FR 40657) published June 13, 2002.

In the November 29, 2001, proposed rule (66 FR 59550), we requested that all interested parties submit factual reports, information, and comments that might contribute to the development of the final listing decision. We contacted appropriate State and Federal agencies, county and city governments, scientific organizations and authorities, and other interested parties and requested them to comment. We published legal notices in the Nevada Appeal on December 16, the Lassen County Times on December 18, and the Reno Gazette Journal on December 19, 2001. Following the publication of the proposed rule, we received a total of 183 comments from individuals or organizations. We opened a second comment period on May 7, 2002 for 30 days to give the public additional time to comment (67 FR 30645). We also held a public informational meeting in Susanville, CA on May 22, 2002. We received an additional 248 comments during the second comment period, for a total of 431 comments. Of the comments received, 263 were in support of the listing action, 165 were opposed to the listing, and 3 were neutral. Comments providing additional information were incorporated where appropriate. We have addressed each of the substantive issues raised by commenters and grouped them into several issues that are discussed below.

Issue 1: A number of commenters were opposed to the listing stating there was a lack of information to support a listing of the Carson wandering skipper as endangered.

Our Response: Since its discovery in 1965, data collections of the Carson wandering skipper have been limited to surveys, literature review, and collection records. The best scientific and commercial data available indicate the subspecies occurs at only two known sites and has been extirpated from a third site.

Geographic Information System modeling was incorporated into the Brussard et al. (1999) study to identify potential habitats for surveying. All records of P. eunus from various sources were compiled. Habitat characteristics, based on the records as well as areas of salt desert scrub and low elevation sagebrush vegetation and water sources along eastern California and western Nevada, were mapped. A total of 78 sites, 30 historic sites and 48 potential new sites were surveyed for the Carson wandering skipper and the other subspecies to assist in determining the Carson wandering skipper's range. Twenty-two of these historic and potential sites were located in the northern areas within the potential range of the Carson wandering skipper. As a result of surveys, two new populations of the Carson wandering skipper were found. The Carson City historic population of Carson wandering skipper is believed extirpated. At this time, only two known populations are extant. All of the surveys were conducted by qualified field biologists during the proper time of year and time of day when the Carson wandering skipper could reasonably be expected to be active, evident, and identifiable.

We have prepared a survey protocol to determine habitat suitability and presence or absence of the Carson wandering skipper, and to provide consistency among surveyors. This protocol is currently being used by consultants reviewing various current and proposed projects during the 2002 survey season. We will evaluate the appropriateness of the protocol for accuracy, usefulness of data, and implementation, and the protocol will be revised as needed. Additional monitoring of occupied sites will be needed to determine population sizes and trends in the future.

Surveys to estimate population size of the Carson wandering skipper have not been conducted. We recognize that population estimates refine our understanding of the status of the subspecies. However, the abundance of insect species can fluctuate greatly from year to year. Some insects may be abundant in localized populations yet susceptible to extirpation by a single event. Therefore, estimates of abundance are not necessarily adequate to determine whether a species is threatened or endangered. We based our determination to list the Carson wandering skipper on evaluation of the current and future threats from the five factors listed in section 4 (a) of the Act.

We acknowledge that undiscovered sites occupied by the Carson wandering skipper may exist and appreciate comments mentioning other areas where the Carson wandering skipper and suitable habitat may occur. However, until the existence of additional populations can be verified and threats, if any, can be determined in these areas, we consider the Carson wandering skipper an endangered species.

Issue 2: Some commenters were opposed to the listing of the Carson wandering skipper because they believed it would cause negative economic impact to the agricultural community.

Our Response: Under section 4 (b)(1)(A) of the Act, a listing determination must be based solely on the best scientific and commercial date available. The legislative history of this provision states the intent of Congress is to ensure that listing decisions are “based solely on biological criteria and to prevent non-biological considerations from affecting these decisions,” H.R. Rep. No. 97-835, 97th Cong., 2nd Sess. 19 (1982). The legislative history also provides that, “applying economic criteria * * * to any phase of the species listing process is applying economics to the determinations made under section 4 of the Act and is specifically rejected by the inclusion of the word “solely” in the legislation,” H.R. Rep. No. 97-835, 97th Cong. 2nd Sess. 19 (1982). Therefore, we are precluded from considering economic impacts in a final decision to list a species.

Issue 3: Other commenters stated that grazing was not a threat to the Carson wandering skipper. Many held this position based on the fact that the extirpation of a population of Carson wandering skipper occurred because of urban and residential development rather than agricultural land use. Many stated that grazing was not a threat to the Carson wandering skipper because salt grass was resistant to grazing and trampling by livestock. Others stated grazing is beneficial to butterflies. In addition, the nectar source, slender birds-foot trefoil, was introduced by farmers and ranchers in the area for pasture production, and the Carson wandering skipper has been utilizing this plant as a nectar source and is successful because of it.

Our Response: While the recently extirpated Carson wandering skipper population in Carson City was in an urban setting, the rural landscape in Nevada and California has also been altered over time. Grazing occurs at both known sites. Livestock grazing can impact: (1) Species composition of communities by decreasing the density and biomass of species, reducing species richness, and changing community organization; (2) ecosystem function including the disruption of nutrient cycling and succession; and (3) ecosystem structure including altering vegetation stratification, contributing to soil erosion and reducing the availability of water to biotic communities (Fleischner 1994). Hutchinson and King (1980) found abundance and biomass of invertebrates (including butterflies (Lepidoptera)) were reduced (with the exception of ants (Hymenoptera)) with increases in sheep numbers. Excessive grazing that reduces the availability of salt grass for Carson wandering skipper larvae and availability of nectar sources for the adults is considered a threat.

We recognize that different grazing intensities and management practices can impact areas differently, and impacts at each site must be evaluated independently. However, we have identified grazing as a threat to several butterfly species that have been listed under the Act ( e.g. , Uncompahgre fritillary butterfly ( Boloria acrocnema ) (56 FR 28712); Myrtle's silverspot butterfly ( Speyeria zerene myrtleae ) (57 FR 27858); Quino checkerspot butterfly ( Euphydryas editha quino ) (62 FR 2322); Callippe silverspot butterfly ( Speyeria callippe callippe ) and Behren's silverspot butterfly ( Speyeria zerene behrensii ) (62 FR 64320)). Grazing occurs at both of the known nectar sites. While we do not know the level or intensity of grazing at these sites, and acknowledge that specific impacts at these sites must be evaluated, we identified a concern that excessive grazing can threaten the species when it reduces the availability of salt grass for the larvae or nectar sources for the adults, or results in the trampling of the larvae. We recognize that grazing, at an appropriate level and season, may be compatible with the conservation of the skipper at these sites. However, such appropriate levels are not known at this time and must be assessed during the recovery process.

As noted by several commenters, salt grass is known to be resistant to grazing and trampling (Crampton 1974; Nebraska Cooperative Extension Service 1985). However, this does not mean that livestock will not graze or trample the salt grass. The term “resistant” means that salt grass is not killed by grazing or trampling and recovers well. Our concerns with impacts from grazing and trampling of salt grass to the Carson wandering skipper relate to the availability of food for the larvae, and the direct trampling of the larvae which are feeding on the salt grass, not impacts to salt grass itself.

As stated by commenters, slender birds-foot trefoil, a nonnative, has been planted in agricultural lands as a forage for cattle and has been utilized by the Carson wandering skipper. The presence of a nectar source is not the only factor influencing the occurrence of Carson wandering skippers. The nectar source location in relation to salt grass is also important and it may be too far from emerging adults to be utilized. Butterflies, in general, are less selective with regard to their nectar sources than they are about their larval host plants (Brussard et al. 1999). Flowers that are the proper size for the butterfly's proboscis (mouthparts) and that produce a sugar concentration of 15 to 25 percent are likely to be utilized (Kingsolver and Daniel 1979). As a result, nectar sources for a particular species can vary by locality and by season (Brussard et al. 1999). While the Carson wandering skipper has been observed nectaring on slender birds-foot trefoil, other plants in the area may offer additional nectar sources as well. If cattle are foraging on slender birds-foot trefoil during the adult flight period, the availability of slender birds-foot trefoil as a nectar source may be reduced. Given these considerations and the Carson wandering skipper's rarity, grazing and trampling by livestock can significantly impact the subspecies and should be assessed in the recovery process.

Issue 4: Four commenters preferred that a collaborative conservation approach occur between the Service and local entities and individuals rather than a listing of the Carson wandering skipper under the Act. They suggested that listing the Carson wandering skipper would inhibit efforts to maintain and restore Carson wandering skipper habitat and likely prevent access to private lands. They proposed development of a process which would be “more informal, less restrictive” than what could occur under the Act.

Our Response: We strongly support the concept of utilizing a collaborative conservation effort to address the threats to species such that the need to list them is precluded. However, given the time needed to complete such an effort and the lack of protective measures afforded by the Act during the process, this type of approach is not well suited for species which are imminently threatened with extinction. We worked with agencies in Nevada and California, and a landowner in Nevada, and a draft conservation plan for the subspecies was developed in 2000. However, we were unable to obtain the information and commitment necessary to reduce or eliminate the threats to the Nevada and California populations. Given the immediate and significant threats to the Carson wandering skipper, we believe listing is necessary to put into effect the various conservation provisions in the Act including, but not limited to, interagency consultation, recovery planning, and take prohibitions as well as cooperative efforts with each State. We look forward to working with Federal, State, county, and private entities in development of a recovery plan to address the conservation needs of the Carson wandering skipper.

Issue 5: Three commenters stated that they believed that the emergency and proposed listing of the Carson wandering skipper was solely the result of the “miniglobal” lawsuit agreement and not science.

Our Response: As stated earlier, our “miniglobal” agreement provided we would review the status of the Carson wandering skipper to determine if emergency listing was appropriate. Based on our review of the available information, we believed emergency listing of the Carson wandering skipper was appropriate and adding it to the list of threatened and endangered species as endangered is also appropriate at this time.

Issue 6: Two commenters suggested that the Service list the Carson wandering skipper as threatened rather than endangered because this would enable the Service to protect the subspecies from urban pressures.

Our Response: We make a determination as to whether a species is threatened or endangered based on the magnitude of threats and the imminency of extinction. The term “endangered” is defined according to section 3(6) of the Act as “* * * any species which is in danger of extinction throughout all or a significant portion of its range * * *”. A “threatened species” is defined as “* * * any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.”

Threats to this subspecies include habitat destruction, degradation, and fragmentation due to urban and residential development, wetland habitat modification, agricultural practices (such as excessive livestock grazing), gas and geothermal development, nonnative plant invasion, collecting, livestock trampling, water exportation/importation projects, road construction, recreation, pesticide drift, and inadequate regulatory mechanisms. Given that only two populations are known to exist, we find these threats constitute immediate and significant threats to the Carson wandering skipper. Based on the available information, we believe that endangered status is appropriate for the Carson wandering skipper.

Issue 7: Two commenters thought that groundwater exportation was not a threat to the Lassen County Carson wandering skipper population because Lassen County restricts transfer of groundwater out of the County under the 1999 Lassen County General Plan.

Our Response: The potential water development project that could impact the Lassen County population involves exportation of water from the Honey Lake Valley which is located in both Lassen County, California and Washoe County, Nevada. It is our understanding that the extraction would occur in the Washoe County portion of the Honey Lake Valley. While Lassen County may not support exportation of surface or ground waters from aquifers located in Lassen County, it is unclear, after review of the Lassen County General Plan Ordinance No. 539 (Andy Whiteman, Lassen County Board of Supervisors, in litt., 2002), how it could prevent actions taken by Washoe County, Nevada.

Issue 8: Two commenters stated that the Service has potentially extended its jurisdiction unlawfully by listing habitat modification under the heading of activities that we believe could potentially result in a violation of section 9, “without identifying an actual Carson wandering skipper specimen that has been taken.” The commenters expressed the opinion that a direct impact is necessary before take has occurred.

Our Response: We have not extended our jurisdiction under section 9 of the Act. As stated in the listing, it is our policy (59 FR 34272) to identify, to the maximum extent practicable, those activities that we believe may or may not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effects of the listing on proposed and ongoing activities within the species' range.

With regard to take, under the Act Federal agencies must address both indirect and direct impacts of activities they authorize, fund, or carry out, that may impact listed species and consult with us under section 7 of the Act. Also, under the Act, private entities must address indirect and direct impacts of activities that result in take of a listed species in order to be issued a permit exception from us for activities that incidentally take listed species but are otherwise lawful. This process occurs under section 10 of the Act and is separate from a listing action which is addressed in section 4 of the Act.

Issue 9: One commenter questioned whether urban development was a threat to the Lassen County Carson wandering skipper population because the area was zoned for agriculture and limited development pressure was occurring.

Our Response: Limited urban or residential development is occurring at both known sites. One example of development is the construction of the Federal Correctional Institution (Institution) in the vicinity of the Lassen County site. Not only can the construction of buildings and infrastructure impact Carson wandering skipper habitat directly, the withdrawal of water for home and business needs could impact groundwater resources. If the water table is lowered, and changes the salt grass community, the Carson wandering skipper may be impacted.

The Lassen County General Plan policies related to zoning (Policies AG-4, AG-8) (A. Whiteman, in litt., 2002), do not prohibit development in the area. Policy AG-4 supports agricultural uses and does not allow isolated subdivision in non-designated areas, but does allow for exceptions. Policy AG-8 recognizes that agricultural areas may be evaluated for alternative uses. Agricultural lands can be converted with adequate justification and consideration of related policies. Again, exceptions may occur. It is unclear whether the Carson wandering skipper site located partially on private land would be considered a “significant wild habitat” by Lassen County. Therefore, it is unclear whether or not it would be taken into consideration prior to possible conversion from agricultural lands to an alternate land use. The Lassen County General Plan also does not address the potential indirect effects of development (A. Whiteman, in litt., 2002).

Issue 10: One commenter questioned whether tall whitetop was a threat to Carson wandering skipper habitat because there was no scientific evidence to support it. However, the commenter did also state that tall whitetop “* * * infestations most likely have a negative impact on salt grass and bird's-foot trefoil density.”

Our Response: While it is correct that a study specific to the impacts of tall whitetop invasion at a Carson wandering skipper nectar site has not been conducted, tall whitetop is a threat to other native species. Tall whitetop is an aggressive invader that displaces other vegetation and can form monotypic stands (an area comprised of one species), decreasing biodiversity, and degrading wildlife habitat as well as reducing the value of agricultural lands (Young et al. 1995; Donaldson and Johnson 1999; Krueger and Sheley 1999; Howard 2000). The species is known to grow in alkaline soils (Hickman 1993; Young et al. 1995; Howard 2000) but is not restricted to them. Tall whitetop can invade disturbed and undisturbed sites including roadsides, agricultural fields, pastures, riparian areas, alkaline wetlands, natural areas, and irrigation canals (Donaldson and Johnson 1999; Howard 2000). It has become widely established in Lassen County and is found in Honey Lake Valley, California (Howard 2000). We are concerned that tall whitetop will displace the Carson wandering skipper's nectar source at the Lassen County site. We are also concerned that tall whitetop may displace salt grass, the Carson wandering skipper's larval host plant. According to Young et al. (1998), infestation areas, once well established, rarely contain other plant species. Tall whitetop appears to have increased at this nectar site compared to 2001 (V. Rivers, pers. comm., 2002).

We support efforts to control tall whitetop in Lassen County and elsewhere in Nevada and California. However, where the Carson wandering skipper is found, consideration must be given to any impacts of control methods. Appropriate methods must be selected, so that the Carson wandering skipper (or other sensitive wildlife, plants, or habitats) can be protected at the same time tall whitetop is controlled.

Issue 11: One commenter stated that pesticide use was not a threat because Carson wandering skippers still occur adjacent to an alfalfa field, and farmers have to pass a safety test prior to applying pesticides.

Our Response: We have indicated that the use of pesticides adjacent to the Carson wandering skipper population in question could be a potential threat if pesticide drift occurred because of the proximity of the agricultural fields to the species' habitat. We do not know what precautions, if any, are being taken at this time to prevent any impact.

Issue 12: One reviewer thought the Service should consider listing the entire species as endangered.

Our Response: As indicated earlier in this rule, a petitioner requested emergency listing of the entire species on November 9, 2000. In our February 20, 2001, response, we indicated we did not believe that an emergency situation existed at that time. Additional status surveys were conducted in 2001 for the remaining subspecies. The results of these surveys are pending, but they should assist us in determining the status of the additional subspecies and determining any threats to them. If our ongoing status review indicates a listing is warranted, we will act accordingly.

Issue 13: One commenter did not think critical habitat should be designated because the Carson wandering skipper has occurred in very small numbers within a few kilometers/miles of the known nectar sites and may exist at low numbers over large areas. Its ecology suggests that areas of relatively high population density may shift among sites within the salt grass community based on changes in climatic, hydrographic, and geothermal conditions. Accurately designating critical habitat will be difficult because either large areas of unoccupied habitat would need to be designated, or if small patches of habitat were designated, changing environmental conditions could result in these areas being uninhabited at a later date.

Our Response: Because information about the specific biological needs of the Carson wandering skipper is currently limited, we are not able to adequately perform critical habitat designation analysis at this time, and find that critical habitat for the species is not determinable. In the proposed rule, we specifically solicited information on potential critical habitat, biological information, and information that would aid our prudency analysis. We received no comments regarding specific physical or biological features essential for the Carson wandering skipper which provided information that added to our ability to determine critical habitat. When we find that critical habitat is not determinable, we have two years from the publication date of the original proposed rule to designate critical habitat, unless the designation is found to be not prudent.

Issue 14: One commenter noted that the description of the Carson wandering skipper by Austin and Emmel (1998) suggests that, infrequently, other subspecies of Pseudocopaeodes eunus approach the coloration of P. e. obscurus. Therefore, the commenter questioned the appropriateness of this subspecies. The commenter was also concerned that the designation “ssp.” had not been included in the scientific name for the Carson wandering skipper indicating that a subspecies was being discussed.

Our Response: It is correct that Austin and Emmel (1998) indicated, as mentioned above, that infrequently, specimens from other populations approach the less heavily marked extremes of the Carson wandering skipper. These specimens do not, however, give the impression of an insect with a dark ventral hindwing, and they lack the dark apex on the ventral forewing. The Carson wandering skipper has been described by recognized authorities in a peer reviewed publication.

We do not use “ssp.” to denote an animal subspecies, only plant subspecies. The absence of its use in animal scientific names does not indicate uncertainty in its taxonomic definition.

Issue 15: One commenter was concerned with the lack of information provided regarding habitat requirements for the Carson wandering skipper. It was suggested that, because soils are effective in discriminating environmental units, soil survey maps be utilized to delineate habitat for the Carson wandering skipper.

Our Response: We agree that additional information regarding Carson wandering skipper's habitat requirements would be useful. However, under the Act, the absence of more details regarding habitat requirements for a species or subspecies does not prevent the listing of the taxon. Habitat requirements for butterflies are primarily defined by its larval host plant, in this case, salt grass. While soils can be an effective means of indicating vegetation communities, salt grass has been observed in many soil types. Researchers did review soil survey maps during the Carson wandering skipper surveys of 1998; however, salt grass did not appear to follow soil survey boundaries and as a result, they were not particularly helpful (P. Brussard, pers. comm., 2002b).

Issue 16: One commenter stated that when the Endangered Species Act was originally passed it “* * * did not contemplate the extinction of creatures of the phylum Insecta; it was aimed at the protection of vertebrate species.”

Our Response: When the Endangered Species Act was passed in 1973, it provided for protection of insects and other invertebrate species. At the time of its passage, definitions for the purposes of the Act were found in section 3(5) which stated: “The term ‘fish or wildlife’ means any member of the animal kingdom, including without limitation any mammal, fish, bird (including any migratory, nonmigratory, or endangered bird for which protection is also afforded by treaty or other international agreement), amphibian, reptile, mollusk, crustacean, arthropod or other invertebrate, and includes any part, product, egg, or offspring thereof, or the dead body or parts thereof.” Several amendments to the Act have since occurred, and this definition can be found today in section 3(8) of the Act.

Issue 17: One commenter asked what information would be necessary for delisting of the Carson wandering skipper.

Our Response: The listing of a species is based on the best scientific and commercial data available at the time of listing as it relates to addressing the five listing factors defined under section 4 (a)(1) of the Act. Section 4 regulations (50 CFR 424.11(c-f)) provide guidance regarding the applicable criteria for delisting and reclassifying species. Delisting of a species can occur if: (1) The species is extinct or has been extirpated from its previous range; (2) the species has recovered and is no longer endangered or threatened; or (3) investigations show that the best scientific or commercial data available when the species was listed or the interpretations of such data were in error. The requirements for listing and delisting are different in that the information necessary to resolve the threats and recover the species need not be known at the time of listing. Specific recovery criteria, which define when a species may be downlisted or delisted, are developed for each species during the recovery planning process and are published in the recovery plan for the species.

Issue 18: One commenter repeated a comment the Service made that the Carson wandering skipper is rare in and of itself. The commenter states that “rare does not mean endangered”.

Our Response: The commenter is correct. Just because a species is rare does not mean it should automatically be listed under the Act. However, if a rare species is determined to be threatened or endangered based on the listing factors in section 4 (a)(1) of the Act using the best scientific and commercial data available, it should be considered for listing.

Issue 19: One commenter stated that there had been insufficient time to gather information, research it, and comment on it by the public.

Our Response: A 60-day comment period was opened when the proposed rule was published. An additional 30-day comment was opened to provide opportunity for further public input. In addition, a public informational meeting was held to answer questions regarding the species and the proposed rule. We believe that the 60-day and 30-day comment periods and the informational meeting provided adequate opportunity for the public to gather available information and comment on the proposed listing.

In accordance with our policy published on July 1, 1994 (59 FR 34270), we have sought the expert opinions of four appropriate and independent specialists regarding our proposal to list the Carson wandering skipper. The purpose of these reviews is to ensure that listing decisions are based on scientifically sound data, assumptions, and analyses. We sent the peer reviewers copies of the emergency and proposed rules immediately following their publication in the Federal Register . Three of the four reviewers returned comments during the comment period. Two of the three reviewers supported our assumptions and conclusions as well as our decision to list the Carson wandering skipper as endangered, while a third reviewer was neutral in his opinion of our proposed action. We have incorporated their comments into this final determination.

Section 4 of the Act and regulations (50 CFR part 424) promulgated to implement the listing provisions of the Act (16 U.S.C. 1531 et seq. ) set forth the procedures for adding species to the Federal lists. We may determine a species to be endangered or threatened due to one or more of the five factors described in section 4(a)(1). These factors and their application to the Carson wandering skipper are as follows:

The primary cause of the decline of the Carson wandering skipper is loss of salt grass, nectar sources, and wetland habitats from human activities. Threats include habitat fragmentation, degradation, and loss due to urban and residential development, wetland habitat modification, agricultural practices (such as excessive livestock grazing), nonnative plant invasion, gas and geothermal development, road construction, water exportation projects with their subsequent change in water table levels and plant composition, and recreation. Threats at each known or historic site are discussed below.

Habitat at the original Carson City site has been greatly modified over time, and most of it was destroyed by construction of a shopping center (Brussard et al. 1999). Several years later, an extension of this population was discovered north of the original location (Brussard et al. 1999). The current site includes about 10 ha (24.7 ac) of known and potential Carson wandering skipper habitat (P. Frost, in litt., 1998). Collections were made at this site from the late 1960s through the early 1990s, although population numbers were small (Austin and Emmel 1998; Brussard et al. 1999). In the 1990s, additional urban development further reduced the remaining habitat, and the site is now completely surrounded by development. Adult Carson wandering skippers have not been observed at this location since 1997.

The Carson wandering skipper has likely been extirpated from the Carson City site due to development and habitat changes resulting from drainage manipulations for residential and commercial development (Brussard et al. 1999). Adjacent lands surrounding this site will continue to be developed for commercial and residential use.

The remaining habitat at the type locality will also be fragmented or destroyed by construction of a freeway bypass and associated flood control facilities being planned by the Nevada Department of Transportation (NDOT). The bypass was approved and the right-of-way corridor was purchased several years ago. At the time, this was the only known site occupied by the Carson wandering skipper. The only suitable nectar source available during the Carson wandering skipper's flight season at this site was the native mustard, Thelypodium crispum (Brussard et al. 1999). Construction of the bypass began in 2000 and impacts to Carson wandering skipper habitat will likely occur in 2002 (Julie Ervin-Holoubek, NDOT, pers. comm., 2001). The alignment will impact approximately 2.4 ha (6 ac) of previously occupied habitat, and about 8 ha (20 ac) of the potential habitat remaining at both areas north and south of U.S. 50 (P. Frost, in litt., 1998). According to Brussard (2000), this will leave inadequate habitat to support a restored population.

Habitat loss and modifications of the Carson City site have also occurred due to the construction of a wetland mitigation area in the early 1990s to mitigate for wetlands lost approximately 0.8 km (0.5 mi) southwest of this site. The U.S. Army Corps of Engineers (Corps) issued a section 404 permit on March 10, 1993, for a residential housing and golf course project, impacting about 2 ha (5 ac) of wetlands. Mitigation for these impacts involved the creation of 9 ha (22 ac) of intermittent, seasonal, and semi-permanent wetlands adjacent to the existing wetlands (Robert W. Junell, Corps, in litt., to Charles L. Macquarie, Lumos and Associates, Inc. 1993; Lumos and Associates, Inc. 1993). To date, this mitigation site has not met its objectives to provide high-value urban wetlands and enhance wetland function (Nancy Kang, Corps, in litt., to Dwight Millard, J.F. Bawden and Stanton Park Development 2001).

In addition, this site is used for recreation by walkers and mountain and dirt bikers in the remaining open area.

Threats at the Washoe County site include excessive livestock grazing and trampling, residential development, increased potential recreational use, such as off-road vehicles (ORV), a proposed water exportation project, and potential impacts associated with pesticide drift.

Recent grazing practices on BLM-administered lands at the Washoe County site allowed for a November to March grazing season. Although this season of use avoided impacts to adult Carson wandering skipper nectar sources and impacts to eggs, larvae, and pupae during the spring and summer, high livestock densities can cause larval mortality by trampling larvae that hibernate during the winter in salt grass. On adjacent private lands, cattle densities and season of use are not regulated, and cattle have access to areas occupied by nectar sources during the Carson wandering skipper flight season. Livestock can trample the salt grass and nectar sources and also cause direct mortality of eggs, pupae, or feeding larvae. While the level of grazing on salt grass has not been measured at this site, cattle readily utilize this dominant forage species (Walt Devaurs, BLM, pers. comm., 2001), possibly competing with larval needs.

An assessment of the springs located on the BLM portion of this site occurred in 2001 (Daniel Jacquet, BLM, in litt., 2002). Cattle use of this area resulted in the springs being determined “Functional at Risk” and “Non-functional,” indicating that the springs were not in good condition. As a result of this determination, livestock grazing will be excluded from this area for 3 years or through the 2005 growing season to rehabilitate the area. This exclusion should improve the abundance and quality of nectar sources and salt grass habitat for the Carson wandering skipper. Grazing may be allowed after this 3-year period if it is determined that improvement to the springs has occurred. While long-term monitoring data of salt grass are lacking, transects established in March 2002, indicate overall utilization was in the “heavy to severe range.” BLM will monitor the site annually for the 3-year period for improvement in growth of vegetation.

Residential development is occurring in the area surrounding the Washoe County site. Increases in domestic wells could impact the water table in the area, resulting in changes to the salt grass community. As this area becomes more populated, fragmentation and degradation of the Carson wandering skipper's habitat is expected to increase through development and recreational activities such as ORV use. Also, use of public lands for recreation will likely increase as the area becomes more developed.

The Nevada State Engineer's Office approved change-in-use applications (agricultural to municipal and industrial use) (Hugh Ricci, Nevada Department of Conservation and Natural Resources, Division of Water Resources, in litt., 2001) for a private landowner plan to export water from this valley and import it to a neighboring valley. This project will involve the collection of up to 358 hectare-meters (ha-m) (2,900 acre-feet (ac-ft)) per year of surface and ground water through a system of ditches, natural channels, diversion structures, collection facilities, and recovery wells. The recovered water will be treated and exported via pipeline to the neighboring valley (Stantec Consulting, Inc. 2000). Implementation of this project, or a similar one, could result in the lowering of the water table in the valley and result in adverse changes to the salt grass community upon which the Carson wandering skipper at this site depends. In addition, the construction of facilities could result in direct impacts to Carson wandering skipper habitat.

Another potential threat is pesticide drift from alfalfa fields located near to the occupied nectar site. Pesticides are used to control pests such as aphids, cutworms, grasshoppers, and mites (Carpenter et al. 1998.). Pesticide drift from these fields to the nectar site could eliminate a large part of the Carson wandering skipper population (Brussard 2000).

Threats at the Lassen County site include the invasion of the nonnative plant species tall whitetop, proposed gas and geothermal development, urban development, and the potential for excessive livestock grazing and trampling. A water development project, which could affect the ground water table, is also of concern.

Tall whitetop, which was first noted in 2000, has encroached onto the nectar site on the public/private property and has become established in patches of slender birds-foot trefoil, this site's nectar source. Tall whitetop is a perennial native to Europe and Asia which grows in disturbed sites, wet areas, ditches, roadsides, and cropland. Spreading roots and numerous seeds make this plant difficult to control (Stoddard et al. 1996). No further advancement of tall whitetop into the nectar site was observed during visits in 2001 (V. Rivers, pers. comm., 2001), but it appears to have spread in 2002 (V. Rivers, pers. comm., 2002). The surrounding countryside, including both public and private lands, is infested (Howard 2000). Failure to control this invasive species could quickly result in the loss of this small nectar source and the immediate salt grass area (Young et al. 1998). Depending on the control methods used (herbicide treatments or mechanical means) and timing, efforts to control this plant species could also impact the Carson wandering skipper population and its habitat at this site. To date, the Carson wandering skipper has not been observed nectaring on tall whitetop.

A permit for proposed gas and geothermal development has been recently extended by the Lassen County Planning Commission (Albaugh 2002). The permit allows exploratory drilling for 14 hydrocarbon wells and one geothermal water test well near the occupied site. The Carson wandering skipper has been associated with geothermal areas and the resulting ground and hydrologic disturbances caused by the exploratory drilling may impact the subspecies and its habitat.

Construction of the Federal Correctional Institution, and its associated water supply and wastewater treatment facilities for the Institution and adjacent community, could impact Carson wandering skipper habitat. The increased water needs (approximately 757 million liters (200 million gallons) per year) (The Louis Berger Group, Inc. 2002) for the project could impact Carson wandering skipper habitat if the ground water table is lowered and salt grass habitat is negatively affected. The Federal Bureau of Prisons is currently consulting with us on the potential impacts of this project to the Carson wandering skipper.

Cattle have access to the Lassen County site at the private/public lands location, however, it is unknown at this time what type of management is being implemented. Like the Washoe County site, season of use and densities of livestock can affect the availability of nectar sources for adults and salt grass for larvae. Trampling of larvae is also possible. In addition, the small size of this site makes it more susceptible to adverse impacts.

Additional potential threats include attempts to export water from the area to other locations. In 1991, the Nevada State Engineer approved exportation of 1,604 ha-m (13,000 ac-ft) of groundwater per year from Honey Lake Valley, located in Lassen and Washoe counties to Lemmon and Spanish Springs Valleys, Washoe County. In 1993, a draft Bedell Flat Pipelines Rights-of-Way, Washoe County, Nevada Environmental Impact Statement was prepared (BLM 1993). Further work on the Bedell Flats Project by BLM was suspended by the Secretary of the Interior (Secretary) in 1994 due to concerns with groundwater modeling, groundwater contamination, and potential impacts to Pyramid Lake (Bruce Babbitt, U.S. Department of the Interior, in litt., 1994). The project has since been modified by new water rights holders, and there are future plans, not yet approved, to potentially export 987 ha-m (8,000 ac-ft) of groundwater annually from Honey Lake Valley to the North Valleys (Donald Pattalock, Vidler Water Company, pers. comm., 2002). If this project, or a similar project, is implemented, lowering of the water table could occur and result in adverse changes to the salt grass community upon which the Carson wandering skipper depends.

Rare butterflies and moths are highly prized by collectors, and an international trade exists for insect specimens for both live and decorative markets, as well as the specialist trade that supplies hobbyists, collectors, and researchers (Morris et al. 1991; Williams 1996). The specialist trade differs from both the live and decorative market in that it concentrates on rare and threatened species (U.S. Department of Justice 1993). In general, the rarer the species, the more valuable it is, and prices may exceed US $2,000 for rare specimens (Morris et al. 1991).

Simply identifying a species as rare can result in an increase in commercial or scientific interest, both legal and illegal, which can threaten the species through unauthorized and uncontrolled collection for scientific and/or commercial purposes. Even limited collection from small populations can have adverse impacts on their viability.

While there have been no studies on the impact of the removal of individuals from natural populations of this subspecies, it is possible that the Carson wandering skipper has been adversely affected. At the Carson City site, individuals of the Carson wandering skipper are known to have been collected for personal butterfly collections during the late 1960s until the early 1990s, though populations were small (Austin and Emmel 1998; Brussard et al. 1999). From 1965 to 1989, at least 86 males and 90 females were collected during 7 different years by various collectors (Austin and Emmel 1998). During this time, this was the only known site at which Carson wandering skipper occurred. The Carson wandering skipper is now believed to have been extirpated from the site. While habitat degradation and loss have occurred at this site, collecting may have also contributed to this extirpation.

In 1998, the Carson wandering skipper was collected at the Washoe County and Lassen County sites by UNR researchers for genetic analysis. Only males were collected, and these were taken late in the flight season to minimize impacts to the population (Brussard et al. 1999).

The two known populations of Carson wandering skipper could face strong pressure from collectors. Since the nectar sites occur along public roadsides, the subspecies is easily accessible, and the limited number and distribution of these populations make this subspecies vulnerable to collectors. Even limited collection from the small populations of Carson wandering skipper could have deleterious effects on its viability and lead to the eventual extinction of this subspecies.

Disease is not known to be a factor affecting this subspecies at this time.

Predation by species, such as birds or insects, on eggs, larvae, pupae, or adult Carson wandering skippers is likely, but it is unknown how this may affect the population's viability.

The Carson wandering skipper occurs on Federal, State, and private lands. Existing regulatory mechanisms do not fully protect this subspecies or its habitat on these lands. Existing regulatory mechanisms that may provide some protection for the Carson wandering skipper include: (1) Federal laws and regulations including the Clean Water Act (CWA); and (2) State laws including the California Environmental Quality Act (CEQA).

The Carson wandering skipper appears to be closely associated with wetland habitats. Current regulatory mechanisms, such as section 404 of the CWA, have not precluded development and alteration of these habitats. Section 404 regulations require that applicants obtain a permit from the Corps for projects that place fill material into waters of the United States. Whether an individual or nationwide permit may be required depends upon the activity and the amount of fill proposed. Regulatory mechanisms addressing alterations to stream channels, riparian areas, springs and seeps from various activities such as agricultural activities, development, and road construction have been inadequate to protect the Carson wandering skipper habitat in Nevada and California.

Some protection is afforded to the Carson wandering skipper on lands administered by the BLM at the Washoe County site due to their commitment to assist in the conservation of this subspecies through a Cooperative Agreement (CA) signed in 1999. This CA was signed by the Service, NDOT, the Federal Highway Administration (FHA), and BLM in October 1999. It was developed to outline the actions necessary for the conservation and management of the Carson wandering skipper. Development of a conservation plan was one activity outlined by the CA. UNR was contracted by NDOT, and a draft plan was completed in 2000. Additional biological information and agency commitment are needed before this plan can be finalized. Since signing the CA in 1999, BLM has designated 98 ha (243 ac) of their lands at the Washoe County site as an Area of Critical Environmental Concern. This designation allows BLM discretion in determining actions which can occur within the area (BLM 2001). However, these protections only cover a portion of Carson wandering skipper habitat in the area and are insufficient to protect the subspecies throughout the site.

Publication of the emergency rule on November 29, 2001, provides protection for the Carson wandering skipper until July 29, 2002. Until publication of the emergency rule, we considered the Carson wandering skipper a candidate species; a candidate species designation carries no formal Federal protection under the Act.

Although California State laws may provide a measure of protection to the subspecies, these laws are not adequate to protect the Carson wandering skipper and ensure its long-term survival. CEQA pertains to projects on non-Federal lands and requires that a project proponent publicly disclose the potential environmental impacts of proposed projects. Section 15065 of the CEQA Guidelines requires a “finding of significance” if a project has the potential to “reduce the number or restrict the range of a rare or endangered plant or animal” including those that are eligible for listing under the California Endangered Species Act. However, under CEQA, where overriding social and economic considerations can be demonstrated, a project may proceed despite significant adverse impacts to a species.

The California Natural Diversity Data Base (CNDDB) classifies the Carson wandering skipper as a S1S3 species, which identifies this subspecies as one that is extremely endangered with a restricted range within California (CNDDB 2001). This designation provides no legal protection in California. The CDFG is unable to protect insects under its current regulations (Pete Bontadelli, CDFG, in litt., 1990), since the California Endangered Species Act does not allow for the listing of insect species.

In Nevada, there are no local or State regulations protecting the Carson wandering skipper on State or non-Federal lands. The Nevada Natural Heritage Program ranks the Carson wandering skipper as S1, meaning it is considered critically imperiled in the State of Nevada due to extreme rarity, imminent threats, or biological factors (Nevada Natural Heritage Program 2000). This designation provides no legal protection in Nevada. The Nevada Division of Wildlife is unable to protect insects under its current regulations (Nevada Revised Statutes 1999).

The apparent low numbers of the Carson wandering skipper make it vulnerable to risks associated with small, restricted populations. The elements of risk that are amplified in very small populations include: (1) Random demographic effects ( e.g., skewed sex ratios, high death rates or low birth rates); (2) the effects of genetic drift (random fluctuations in gene frequencies) and inbreeding (mating among close relatives); and (3) deterioration in environmental quality (Gilpin and Soulé 1986). Genetic drift and inbreeding may lead to reductions in the ability of individuals to survive and reproduce ( i.e., reductions in fitness) in small populations. In addition, reduced genetic variation in small populations may make any species less able to adapt to future environmental changes. Also, having only two locations and restricted habitat makes the Carson wandering skipper susceptible to extinction or extirpation from all or a portion of its range due to random events such as fire, flood, or drought (Shaffer 1981, 1987; Primack 1998).

In addition, the loss of habitat compromises the ability of the Carson wandering skipper to disperse. Populations are isolated with no opportunity to migrate or recolonize if conditions become unfavorable.

A wetlands mitigation bank is being established near the Lassen County site. It is located adjacent to existing CDFG lands. This parcel of land has been recently grazed and farmed. The bank is intended to create a minimum of 37 ha (92 ac) of emergent wetlands at this site to mitigate for wetland losses in sagebrush scrub and juniper woodland habitats due to road construction in Lassen and Modoc counties and the eastern portion of Plumas County. This bank will be managed by CDFG (California Department of Transportation (CalTrans) and CDFG 1998). Depending upon the location of constructed wetlands, loss of potential Carson wandering skipper habitat could occur. CalTrans, representing the FHA, is currently consulting with us regarding potential impacts to the subspecies with regard to this wetland mitigation bank project.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by the Carson wandering skipper in determining to make this rule final. We are concerned about the Carson wandering skipper because of the extremely small number of populations, habitat fragmentation, and significant decrease in its historical range in Nevada and California. This subspecies is threatened by the following factors: habitat destruction, degradation, and fragmentation due to urban and residential development, wetland habitat modification, agricultural uses (such as excessive livestock grazing), nonnative plant invasion, gas and geothermal development, road construction and recreation. Other threats include impacts from collecting, livestock trampling, pesticide drift, and inadequate regulatory mechanisms. Proposed water exportation projects pose an additional threat. These projects could severely impact Carson wandering skipper habitat by lowering the water table, and degrading or eliminating the salt grass community upon which the Carson wandering skipper depends.

This subspecies is also vulnerable to chance demographic, genetic, and environmental events, to which small populations are particularly vulnerable. The combination of only two populations, small range, and restricted habitat makes the subspecies highly susceptible to extinction or extirpation from a significant portion of its range due to random events such as fire, drought, disease, or other occurrences (Shaffer 1981, 1987; Meffe and Carroll 1994).

Because the Carson wandering skipper occurs at only two known locations, and because both locations are subject to various immediate, ongoing, and future threats as outlined above, we find that the Carson wandering skipper is in imminent danger of extinction throughout all or a significant portion of its range and, therefore, meets the Act's definition of endangered and warrants protection under the Act. Threatened status would not accurately reflect the diminished status and the threats to this subspecies.

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

Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, we designate critical habitat at the time the species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)) state that critical habitat is not determinable if information sufficient to perform the required analysis of impacts of the designation is lacking, or if the biological needs of the species are not sufficiently well known to allow identification of an area as critical habitat. Section 4(b)(2) of the Act requires us to designate critical habitat on the basis of the best scientific data available after considering economic and other relevant impacts of designating a particular area as critical habitat. We may exclude any area from critical habitat if we determine that the benefits of such exclusion outweigh the conservation benefits, unless to do so would result in the extinction of the species.

We find that critical habitat is not determinable for the Carson wandering skipper. In the proposed rule, we specifically solicited information on potential critical habitat, biological information, and information that would aid our prudency analysis. We received no comments regarding specific physical or biological features essential for the Carson wandering skipper which provided information that added to our ability to determine critical habitat. In addition, the extent of habitat required for recovery of the Carson wandering skipper has not been identified. This information is considered essential for determining critical habitat. We are also concerned that the designation of critical habitat could increase the degree of threat to the subspecies through collecting or from intentional habitat degradation. Because information relevant to the specific biological needs of the Carson wandering skipper is not currently available, we are unable to adequately perform the analysis required to designate critical habitat and therefore, we find that critical habitat for the Carson wandering skipper is not determinable at this time. When a “not determinable” finding is made, we must, within 2 years of the publication date of the original proposed rule, designate critical habitat, unless the designation is found to be not prudent.

We will protect the Carson wandering skipper and its habitat through section 7 consultations to determine whether Federal actions are likely to jeopardize the continued existence of the subspecies, through the recovery process, through enforcement of take prohibitions under section 9 of the Act, and through the section 10 process for activities on non-Federal lands with no Federal nexus.

Conservation measures provided to species listed as endangered or threatened under the Act include recognition, development of recovery actions, requirements for Federal protection, and prohibitions against certain activities. Recognition through listing results in public awareness and encourages conservation actions by Federal, State, and local agencies, private organizations, and individuals. The Act provides for possible land acquisition and cooperation with the States, and requires that the Service carry out recovery actions for all listed species. The protection required of Federal agencies, and the prohibitions against certain activities involving listed species are discussed, in part, below.

Section 7(a) of the Act, as amended, 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 being designated. 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 species proposed for listing, or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat, if any has been designated. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into formal consultation with us.

Federal agencies whose actions may require consultation include, but are not limited to, the BLM, Corps, FHA, Natural Resources Conservation Service, U.S. Department of the Army, and the Federal Bureau of Prisons. Federal agencies with management responsibility for the Carson wandering skipper also include the Service, in relation to Partners for Fish and Wildlife projects and issuance of section 10(a)(1)(B) permits for habitat conservation plans, and other programs. Activities on BLM lands could include livestock grazing and associated management activities, sale, exchange, or lease of Federal land containing suitable habitat, recreational activities, or issuance of right-of-way permits for various projects across lands they administer. Occurrences of this subspecies could potentially be affected by projects requiring a permit from the Corps under section 404 of the CWA. The Corps is required to consult on permit applications they receive for projects that may affect listed species. Highway construction and maintenance projects that receive funding from the FHA would be subject to review under section 7 of the Act. Activities authorized under the Natural Resources Conservation Service's Emergency Watershed Protection program, such as fire rehabilitation projects, and activities authorized by the U.S. Department of the Army and the Federal Bureau of Prisons would also be subject to section 7 review. In addition, activities that are authorized, funded, or administered by Federal agencies on non-Federal lands will be subject to section 7 review.

We believe that protection and recovery of the Carson wandering skipper will require reduction of the threats from habitat destruction, degradation, and loss of salt grass and wetland habitats due to urban and residential development, agricultural practices (such as excessive livestock grazing), nonnative plant invasion, gas and geothermal development, and road construction. Threats from collection, livestock trampling, water exportation projects, pesticide drift, and recreation must also be reduced. These threats should be considered when management actions are taken in habitats currently and potentially occupied by the Carson wandering skipper, and areas deemed important for dispersal, and connectivity or corridors between known locations of this subspecies. Monitoring should also be undertaken for any management actions or scientific investigations designed to address these threats or their impacts.

Listing the Carson wandering skipper as endangered will provide for the development of a recovery plan for the subspecies. Such a plan will bring together Federal, State, and regional agency efforts for conservation of the subspecies. A recovery plan will establish a framework for agencies to coordinate their recovery efforts. The plan will set recovery priorities, assign responsibilities, and estimate the costs of various tasks necessary to achieve conservation and survival of the subspecies. Additionally, pursuant to section 6 of the Act, we will be able to grant funds to the States of Nevada and California for management actions promoting the protection and recovery of this subspecies.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered wildlife. All prohibitions of section 9(a)(2) of the Act, codified at 50 CFR 17.21, in part, make it illegal for any person subject to the jurisdiction of the United States to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or attempt any such conduct), import or export, transport in interstate or foreign commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any listed species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to our agents and State conservation agencies.

Permits may be issued to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22 and 17.23. Such permits are available for scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities.

It is our policy, published in the Federal Register on July 1, 1994 (59 FR 34272), to identify, to the maximum extent practicable, activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effects of the listing on proposed and ongoing activities within the subspecies' range. With respect to the Carson wandering skipper, based upon the best available information, we believe the following actions would not be likely to result in a violation of section 9, provided these activities are carried out in accordance with existing regulations and permit requirements:

(1) Possession, delivery, including interstate transport and import or export from the United States, involving no commercial activity, of dead Carson wandering skippers that were collected prior to the November 29, 2001 date of publication of the emergency listing rule in the Federal Register ;

(2) Any actions that may result in take of the Carson wandering skipper that are authorized, funded or carried out by a Federal agency when the action is conducted in accordance with the consultation requirements for listed species pursuant to section 7 of the Act;

(3) Any action taken for scientific research carried out under a recovery permit issued by the Service pursuant to section 10(a)(1)(A) of the Act; and

(4) Land actions or management carried out under a habitat conservation plan approved by the Service pursuant to section 10(a)(1)(B) of the Act, or an approved conservation agreement.

Activities that we believe would potentially result in a violation of section 9 include, but are not limited to:

(1) Unauthorized possession, handling, or collecting of the Carson wandering skipper. Research efforts involving these activities will require a permit under section 10(a)(1)(A) of the Act;

(2) Possession, sale, delivery, carriage, transportation, or shipment of illegally taken Carson wandering skipper specimens;

(3) Activities authorized, funded, or carried out by Federal agencies that may result in take of the Carson wandering skipper when such activities are not conducted in accordance with the consultation requirements for listed species under section 7 of the Act; and

(4) Activities ( e.g., habitat conversion, urban and residential development, gas and geothermal exploration and development, excessive livestock grazing, farming, road and trail construction, water development, recreation, and unauthorized application of herbicides and pesticides in violation of label restrictions) that directly or indirectly result in the death or injury of adult Carson wandering skippers, or their pupae, larvae or eggs, or that modify Carson wandering skipper habitat and significantly affect their essential behavioral patterns including breeding, foraging, sheltering, or other life functions that result in death or physical injuries to skippers. Otherwise lawful activities that incidentally take Carson wandering skipper specimens, but have no Federal nexus, will require a permit under section 10(a)(1)(B) of the Act.

Questions regarding whether specific activities risk violating section 9 should be directed to the Field Supervisor of the Nevada Fish and Wildlife Office or the Field Supervisor of the Sacramento Fish and Wildlife Office ( see FOR FURTHER INFORMATION CONTACT section). Requests for copies of the regulations on listed wildlife, and general inquiries regarding prohibitions and issuance of permits under the Act, may be addressed to the U.S. Fish and Wildlife Service, Ecological Services, Endangered Species Permits, 911 NE 11th Ave., Portland, OR 97232-4181 (telephone 503/231-2063; facsimile 503/231-6243).

We published the emergency rule for this subspecies on November 29, 2001. The 240-day period expires on July 29, 2002. This final rule must be published on or before this date to prevent Federal protection for the Carson wandering skipper from expiring. Because of this, we find that good cause exists for this rule to take effect immediately upon publication in accordance with 5 U.S.C. 553(d)(3).

We have determined that an environmental assessment and 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 of 1973, as amended. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

This rule does not contain any new collections of information that require approval by Office of Management and Budget (OMB) under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ). This rule will not impose record keeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. Information collections associated with endangered species permits are covered by an existing OMB approval and are assigned control number 1018-0093 expires March 31, 2004.

On May 18, 2001, the President issued an Executive Order 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. This rule 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.

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

The primary author of this final rule is Marcy Haworth, U.S. Fish and Wildlife Service, Nevada Fish and Wildlife Office ( see ADDRESSES section).

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for the Groundfish Fishery of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The Pacific halibut bycatch allowance for the GOA trawl deep-water species fishery, which is defined at § 679.21(d)(3)(iii)(B), was established by an emergency rule implementing 2002 harvest specifications and associated management measures for the groundfish fisheries off Alaska (67 FR 956, January 8, 2002) for the third season, the period June 30, 2002, through September 1, 2002, as 400 metric tons.

In accordance with § 679.21(d)(7)(i), the Administrator, Alaska Region, NMFS, has determined that the third seasonal apportionment of the 2002 Pacific halibut bycatch allowance specified for the trawl deep-water species fishery in the GOA has been reached. Consequently, NMFS is prohibiting directed fishing for the deep-water species fishery by vessels using trawl gear in the GOA. The species and species groups that comprise the deep-water species fishery are: all rockfish of the genera Sebastes and Sebastolobus , deep water flatfish, rex sole, arrowtooth flounder, and sablefish.

Maximum retainable bycatch amounts may be found in the regulations at § 679.20(e) and (f).

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds that, because the third seasonal apportionment of the 2002 Pacific halibut bycatch allowance specified for the deep-water species fishery in the GOA has been reached, the need to immediately implement this action constitutes good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B). These procedures are unnecessary and contrary to the public interest because of the need to implement these measures in a timely fashion because the third seasonal apportionment of the 2002 Pacific halibut bycatch allowance specified for the deep-water species fishery in the GOA has been reached. This constitutes good cause to find that the effective date of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d)(3), a delay in the effective date is hereby waived.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for the Groundfish Fishery of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2002 TAC allocation of shortraker and rougheye rockfish for the Western Regulatory Area was established as 220 metric tons by an emergency rule implementing 2002 harvest specifications and associated management measures for the groundfish fisheries off Alaska (67 FR 956, January 8, 2002 and 67 FR 34860, May 6, 2002).

In accordance with § 679.20(d)(2), the Administrator, Alaska Region, NMFS, has determined that the allocation of the shortraker and rougheye rockfish TAC in the Western Regulatory Area of the GOA has been achieved. Therefore, NMFS is requiring that further catches of shortraker and rougheye rockfish in the Western Regulatory Area of the GOA be treated as prohibited species in accordance with § 679.21(b).

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is contrary to the public interest. This requirement is contrary to the public interest as it would delay the closure of the fishery, lead to exceeding the TAC, and therefore reduce the public's ability to use and enjoy the fishery resource.

The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.