In an interim rule effective and published in the Federal Register on May 8, 2002 (67 FR 30769-30771, Docket No. 02-029-1), we amended the citrus canker regulations in 7 CFR part 301 by removing a portion of Manatee County, FL, from the list of quarantined areas in § 301.75-4(a). The regulations require that an area be free from citrus canker for a period of at least 2 years before it may be removed from the list of quarantined areas, and surveys have shown that the 41-square-mile Duette area in eastern Manatee County, FL, has been free of citrus canker since February 4, 2000. Therefore, the interim rule removed restrictions on the interstate movement of regulated articles from that area.

Comments on the interim rule were required to be received on or before July 8, 2002. We did not receive any comments. Therefore, for the reasons given in the interim rule, we are adopting the interim rule as a final rule.

This action also affirms the information contained in the interim rule concerning Executive Order 12866 and the Regulatory Flexibility Act, Executive Orders 12372 and 12988, and the Paperwork Reduction Act.

Further, for this action, the Office of Management and Budget has waived its review under Executive Order 12866.

The President signed into law the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (Pub. L. 107-188) on June 12, 2002. Title II of Public Law 107 188, “Enhancing Controls on Dangerous Biological Agents and Toxins” (sections 201 through 231), provides for the regulation of certain biological agents and toxins by the Department of Health and Human Services (subtitle A, sections 201-204) and the Department of Agriculture (subtitle B, sections 211-213), and provides for interagency coordination between the two departments regarding overlap agents and toxins (subtitle C, section 221). Subtitle D (section 231) provides for criminal penalties regarding certain biological agents and toxins. For the Department of Health and Human Services, the Centers for Disease Control and Prevention (CDC) has been designated as the agency with primary responsibility for implementing the provisions of the Act; the Animal and Plant Health Inspection Service (APHIS) is the agency fulfilling that role for the Department of Agriculture (USDA).

In subtitle B (which is cited as the “Agricultural Bioterrorism Protection Act of 2002,” referred to below as the Act ), section 212(a) provides, in part, that the Secretary of Agriculture (the Secretary) must establish by regulation a list of each biological agent and each toxin that she determines has the potential to pose a severe threat to animal or plant health, or to animal or plant products. In determining whether to include an agent or toxin on the list, the Act requires the Secretary to consider:

• The effect of exposure to the agent or toxin on animal or plant health, and on the production and marketability of animal or plant products;

• The pathogenicity of the agent or the toxicity of the toxin and the methods by which the agent or toxin is transferred to animals or plants;

• The availability and effectiveness of pharmacotherapies and prophylaxis to treat and prevent any illness caused by the agent or toxin; and

• Any other criteria that the Secretary considers appropriate to protect animal or plant health, or animal or plant products.

The Act also calls on the Secretary to consult with appropriate Federal departments and agencies and with scientific experts representing appropriate professional groups.

Under section 213(a) of the Act, the Secretary must, not later than 60 days after the Act's date of enactment ( i.e., by August 11, 2002), promulgate an interim final rule that establishes the initial list required under section 212(a). The Act further requires (under section 213(b)) that all persons in possession of any listed biological agent or toxin must, within 60 days of the publication of that interim rule, notify the Secretary of such possession; the Act provides that the interim rule establishing the list must also furnish written guidance on the manner in which the required notice is to be provided.

In accordance with the statutory requirements discussed above, this interim rule establishes the initial lists of biological agents and toxins and sets out the manner in which persons in possession of listed agents and toxins are to provide notice of such possession. To accomplish this, we are establishing new parts in the Code of Federal Regulations (CFR), one part in the plant-related provisions of title 7, chapter III, and one part in the animal-related provisions of title 9, chapter I.

The two new parts, 7 CFR part 331 and 9 CFR part 121, are both titled “Possession of Biological Agents and Toxins” and are constructed similarly: Each contains a section that provides definitions for specific terms used in the part, a section in which the list of biological agents and toxins is set out, and a section that provides guidance on the manner in which the required notice is to be provided. The main difference between the two parts is in the lists: The regulations in 7 CFR part 331 list only those agents and toxins determined to have the potential to pose a severe threat to plant health or to the production and marketability of plant products, while the regulations in 9 CFR part 121 list those agents and toxins determined to have the potential to pose a severe threat to both human and animal health (“overlap agents and toxins”), to animal health, or to the production and marketability of animal products. These new parts are discussed in detail below.

Both 7 CFR part 331 and 9 CFR part 121 begin with a definitions section, §§ 331.1 and 121.1, respectively. With one exception, the terms defined in each section are the same. Specifically, we define the terms biological agent, facility, person, responsible facility official, and toxin in both parts, while the term overlap agent or toxin is defined only in 9 CFR 121.1 (this term is not applicable to the plant-related regulations in 7 CFR part 331).

The definitions of biological agent and toxin are taken from 18 U.S.C. 178. Section 212(l) of the Act provides that “[t]he terms “biological agent” and “toxin” have the meanings given such terms in section 178 of title 18, United States Code.” Thus, we define biological agent as “any microorganism, virus, infectious substance, or biological product that may be engineered as a result of biotechnology, or any naturally occurring or bioengineered component of any such microorganism, virus, infectious substance, or biological product, capable of causing: (1) Death, disease, or other biological malfunction in a human, an animal, a plant, or another living organism; (2) deterioration of food, water, equipment, supplies, or material of any kind; or (3) deleterious alteration of the environment.” Toxin is defined as “the toxic material of plants, animals, microorganisms, viruses, fungi, or infectious substances, or a recombinant molecule, whatever its origin or method of production, including: (1) Any poisonous substance or biological product that may be engineered as a result of biotechnology produced by a living organism; or (2) any poisonous isomer or biological product, homolog, or derivative of such a substance.”

In 9 CFR 121.1, we also define the term overlap agent or toxin. The definition we use is based on the definition provided for the term “select agent” in the CDC's regulations in 42 CFR 72.6(j). In appendix A to 42 CFR part 72, CDC provides a list of 36 select agents, 18 of which are microorganisms or toxins that pose a risk to both human and animal health. Those 18 microorganisms and toxins are listed as “overlap agents or toxins” in our regulations in § 121.2(a) and are characterized in the same manner by CDC for the purposes of carrying out its responsibilities under the Act.

Given that the agents and toxins listed in § 121.2(a) were drawn from the CDC's list of select agents, we believe that it is appropriate to adapt the CDC definition of the term “select agent” for use as our definition of the term “overlap agent or toxin” in order to provide regulated entities with a consistent frame of reference. Therefore, in 9 CFR 121.1, overlap agent or toxin is defined as “a microorganism (including a virus, bacterium, fungus, rickettsia) or toxin that poses a risk to both human and animal health and that is listed in § 121.2(a). The term also includes: (1) Genetically modified microorganisms or genetic elements from organisms listed in § 121.2(a), shown to produce or encode for a factor associated with a disease; and (2) genetically modified microorganisms or genetic elements that contain nucleic acid sequences coding for any of the toxins listed in § 121.2(a), or their toxic subunits.”

The remaining three terms, which are defined in both 7 CFR 331.1 and 9 CFR 121.1, are facility, responsible facility official, and person. Like our definition of overlap agent or toxin, our regulations define the first two terms in the same manner as they are defined in CDC's regulations in 42 CFR 72.6(j) in order to provide a consistent frame of reference. Facility is defined as “any individual or government agency, university, corporation, company, partnership, society, association, firm, or other legal entity located at a single geographic site that may transfer or receive through any means a biological agent or toxin subject to this part.” Generally speaking, “a single geographic site” can be viewed as the complex of buildings and laboratories at a single mailing address.

Responsible facility official is defined as “an official authorized to transfer and receive biological agents or toxins covered by this part on behalf of a facility. This person should be either a safety officer, a senior management official of the facility, or both. The responsible facility official should not be an individual who actually transfers or receives a biological agent or toxin at the facility.” For the purposes of clarity, the definition of this term in 9 CFR 121.1 includes the words “including overlap agents and toxins” after the words “authorized to transfer and receive biological agents or toxins.”

We have defined person as “any individual, firm, corporation, company, society, or association; any Federal, State, or local governmental entity; or any organized group of any of the foregoing.” Where this term is defined elsewhere in our regulations in titles 7 and 9, the scope of the definition is limited to individuals, companies, and other legal entities. However, section 212(l)(5) of the Act, in defining “person,” stipulates that the term includes Federal, State, and local governmental entities.

The initial lists of biological agents and toxins required under section 212(a)(1) of the Act are located in 7 CFR 331.2 and 9 CFR 121.2. The Act requires that these lists be reviewed and republished biennially, or more often as needed, and revised as necessary.

The list of nine biological agents and toxins provided in 7 CFR 331.2 was compiled by APHIS' Plant Protection and Quarantine (PPQ) program. The listed agents and toxins are viruses, bacteria, or fungi that can pose a severe threat to a number of important crops, including potatoes, rice, soybeans, corn, citrus, and stone fruit. PPQ staff, after internal discussions and a review of several existing or proposed lists of plant pathogens that potentially pose a severe threat to plant health or plant products, requested input from USDA's Agricultural Research Service, Forest Service, and Cooperative State Research, Education, and Extension Service, and consulted with the American Phytopathological Society. The resulting list of agents and toxins identified as potentially posing a severe threat to plant health or plant products is as follows:

The list of 18 overlap agents and toxins in 9 CFR 121.2(a) was, as noted previously, drawn from CDC's list of 36 select agents, the 18 listed in our regulations being those select agents that pose a risk to both human and animal health. In June 2002, CDC convened an interagency working group to review the list of 36 select agents and develop recommendations regarding possible changes to that list. CDC has reviewed those recommendations and intends publish a document in the Federal Register to solicit comments from the public on potential changes to its list of select agents. Because the process of changing the list of select agents is still in its initial stages at the time this interim rule is being published, the list of overlap agents and toxins found in 9 CFR 121.2(a) reflects the select agent list promulgated by CDC in October 1996. The overlap agents and toxins listed in 9 CFR 121.2(a) are:

The 23 agents and toxins listed in 9 CFR 121.2(b) include the causative agents of 14 of the 15 diseases classified by the Office International des Epizooties (OIE) as “List A” diseases. (The causative agent of the fifteenth List A disease, Rift Valley fever, is an overlap agent listed in § 121.2(a).) List A diseases are, according to OIE, those transmissible diseases that have the potential for very serious and rapid spread, irrespective of national borders, that are of serious socioeconomic or public health consequence and that are of major importance in the international trade of animals and animal products. The diseases drawn from OIE's List A are:

Five of the remaining nine agents and toxins listed in 9 CFR 121.2(b) are OIE List B diseases, i.e. , transmissible diseases that are considered to be of socioeconomic and/or public health importance within countries and that are significant in the international trade of animals and animal products. The List B diseases included in 9 CFR 121.2(b) are:

The four remaining diseases/disease agents—two restricted foreign animal pathogens (Akabane virus and camel pox virus) and two emerging paramyxoviruses (Menangle virus and Nipah virus)—were included on the list in 9 CFR 121.2(b) based on our determination that they potentially pose a severe threat to animal health or animal products.

• The Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq. );

• Section 351 of Public Health Service Act (42 U.S.C. 262);

• The Act commonly known as the Virus-Serum-Toxin Act (the eighth paragraph under the heading “Bureau of Animal Industry” in the Act of March 4, 1913; 21 U.S.C. 151-159); or

• The Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 131 et seq. ).

Paragraph (b) of § 213 of the Act extends that exemption provision to the notification requirements that are the subject of this interim rule. Therefore, the regulations 9 CFR 121.2(c) provide that persons possessing products that are, bear, or contain overlap agents or toxins listed in 9 CFR 121.2(a) will be exempt from the notification requirements of 9 CFR 121.3 if the products have been cleared, approved, licensed, or registered pursuant to one of the acts cited above.

Because the exemption under section 212(g)(1)(C) of the Act is limited to overlap agents and toxins, none of which appear in 7 CFR 331.2, we have not included those exemption provisions in the regulations in 7 CFR part 331. Further, while the Act, in section 212(g)(2), does provide general authority for exemptions not involving overlap agents or toxins when the Secretary determines that such exemptions are consistent with protecting animal and plant health and animal and plant products, no determination has yet been made with regard to exemptions other than those discussed above.

To facilitate the notification process, both sections provide that a single form should be submitted for each facility by a responsible facility official designated by the facility to ensure management oversight of the notification requirement, and that the responsible facility official should consult with others in the facility ( e.g., principal investigators) in order to obtain the information necessary to complete the notification form. The responsible facility official must review and sign the notification form and will be the individual contacted by APHIS if any questions arise concerning the facility's response.

Finally, both sections provide a mailing address for the submission of completed forms, as well as a telephone number to call if assistance in completing the form is required.

Immediate action is necessary in order for USDA to comply with the requirements of Title II, subtitle B, of Public Law 107-188, which requires the publication of this interim rule not later than August 11, 2002. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the Federal Register .

We will consider comments that are received within 60 days of publication of this rule in the Federal Register . After the comment period closes, we will publish another document in the Federal Register . The document will include a discussion of any comments we receive and any amendments we are making to the rule as a result of the comments.

This rule has been reviewed under Executive Order 12866. The rule has been determined to be significant for the purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget.

In this interim rule, we are establishing, by regulation, an initial list of biological agents and toxins determined to have the potential to pose a severe threat to animal or plant health, or to animal or plant products. The Agricultural Bioterrorism Protection Act of 2002 requires that all persons in possession of any listed biological agent or toxin must, within 60 days of the publication of this interim rule, notify the Secretary of such possession. This interim rule establishes the initial list of biological agents and toxins and provides guidance on the manner in which the required notice is to be provided.

The Regulatory Flexibility Act requires that agencies specifically consider the economic effects of their rules on small entities. We expect that the entities that will be affected by this rule will be laboratories and other institutions conducting research and related activities that involve the use of the biological agents and toxins listed in this rule. Most affected entities (apart from Federal or State governmental entities) could be considered as falling under North American Industry Classification System (NAICS) code 541710, “Research and Development in the Physical, Engineering, and Life Sciences.” The small business size standard established by the Small Business Administration for NAICS 541710 is 500 or fewer employees. Potentially affected entities could also fall under NAICS 541990, “All Other Professional, Scientific and Technical Services,” and NAICS 611310, “Colleges, Universities and Professional Schools.” The small business size standard for both of those classifications is annual receipts of $6 million or less.

Given that this interim rule simply requires that persons possessing a listed biological agent or toxin provide notice to APHIS of such possession, we do not expect that this rule will have any substantive economic effect on any entities, large or small. We expect that any costs associated with this rule will be limited to the staff time expended in completing a notification form. This rule provides for the submission of only one form for each facility, which should limit the amount of time necessary for the preparation of a facility's response. Further, we would expect that any facility handling the kinds of biological agents and toxins listed in this rule would have a database or other records containing a listing of agents and toxins currently in the facility. Therefore, we anticipate that any personnel costs resulting from compliance with this rule should be minimal.

The benefit of this action is enhanced protection of the U.S. agricultural sector as APHIS will have a detailed inventory of biological agents and toxins that could pose a threat to the sector.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

In accordance with section 3507(j) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the information collection and recordkeeping requirements included in this interim rule have been submitted for emergency approval to the Office of Management and Budget (OMB). OMB has assigned control numbers 0579-0201 and 0579-0204 to the information collection and recordkeeping requirements.

We plan to request continuation of that approval for 6 months. Please send written comments on the 6-month approval request to the following addresses: (1) Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503; and (2) Docket No. 02-082-1, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comments refer to Docket No. 02-082-1 and send your comments within 60 days of publication of this rule.

This rule establishes an initial list of biological agents and toxins determined to have the potential to pose a severe threat to animal or plant health, or to animal or plant products, and requires that all persons in possession of any listed biological agent or toxin must, within 60 days of the publication of this interim rule, notify the Secretary of such possession.

Two forms have been developed to provide the means by which persons in possession of listed agents or toxins will notify the Secretary of such possession. The first form, “Notification of Possession of Select Agents or High Consequence Livestock Pathogens and Toxins,” was developed jointly by APHIS and the Centers for Disease Control and Prevention and will be used by persons possessing those agents and toxins determined to have the potential to pose a severe threat to human health, to both human and animal health (“overlap agents and toxins”), to animal health, or to the production and marketability of animal products. The second form, PPQ form 655, was developed by APHIS and will be used by persons possessing those agents and toxins determined to have the potential to pose a severe threat to plant health or to the production and marketability of plant products. We expect that the scope and nature of the research required to complete PPQ form 655 will be less complex than that associated with the first form, thus we have estimated a smaller reporting burden per response for this form.

We are soliciting comments from the public concerning our information collection and recordkeeping requirements. These comments will help us:

(1) Evaluate whether the information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the information collection, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses).

Estimate of burden: Public reporting burden for this collection of information is estimated to average 2 hours per response.

Respondents: Researchers, universities, research and development organizations, diagnostic laboratories, and other entities that possess listed agents and toxins determined to have the potential to pose a severe threat to human health, to both human and animal health, to animal health, or to the production and marketability of animal products.

Estimated annual number of respondents: 50,000.

Estimated annual number of responses per respondent: 1.

Estimated annual number of responses: 50,000.

Estimated total annual burden on respondents: 100,000 hours.

Estimate of burden: Public reporting burden for this collection of information is estimated to average 0.5 hours per response.

Respondents: Researchers, universities, research and development organizations, diagnostic laboratories, and other entities that possess listed agents and toxins determined to have the potential to pose a severe threat to plant health or to the production and marketability of plant products.

Estimated annual number of respondents: 1,000.

Estimated annual number of responses per respondent: 1.

Estimated annual number of responses: 1,000.

Estimated total annual burden on respondents: 500 hours.

(Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.

This rule is issued under Marketing Agreement and Order No. 989 (7 CFR part 989), both as amended, regulating the handling of raisins produced from grapes grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

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

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

This rule decreases the desirable carryout used to compute the yearly trade demand for raisins regulated under the order. Trade demand is computed based on a formula specified in the order, and is used to determine volume regulation percentages for each crop year, if necessary. Desirable carryout, one factor in this formula, is the amount of tonnage from the prior crop year needed during the first part of the next crop year to meet market needs, before new crop raisins are available. This rule decreases the desirable carryout for Natural (sun-dried) Seedless (NS) raisins from a rolling average of 3 to 2 months of prior year's shipments over the past 5 years, dropping the high and low figures, and dividing the remaining sum by three, or 60,000 natural condition tons, whichever is higher. This rule also decreases the desirable carryout for all other varietal types of raisins covered under the order from a rolling average of 3 to 2-1/2 months of prior year's shipments over the past 5 years, dropping the high and low figures, and dividing the remaining sum by three. These actions were recommended by the Committee at meetings held on June 27 and July 24, 2002.

The order provides authority for volume regulation designed to promote orderly marketing conditions, stabilize prices and supplies, and improve producer returns. When volume regulation is in effect, a certain percentage of the California raisin crop may be sold by handlers to any market (free tonnage) while the remaining percentage must be held by handlers in a reserve pool (reserve) for the account of the Committee. Reserve raisins are disposed of through certain programs authorized under the order. For instance, reserve raisins may be sold by the Committee to handlers for free use or to replace part of the free tonnage raisins they exported; used in diversion programs; carried over as a hedge against a short crop the following year; or disposed of in other outlets not competitive with those for free tonnage raisins, such as government purchase, distilleries, or animal feed. Funds generated from sales of reserve raisins are also used to support handler sales to export markets. Net proceeds from sales of reserve raisins are ultimately distributed to the reserve pool's equity holders, primarily producers.

Section 989.54 of the order prescribes procedures to be followed in establishing volume regulation and includes methodology used to calculate volume regulation percentages. Trade demand is based on a computed formula specified in this section, and is also part of the formula used to determine volume regulation percentages. Trade demand is equal to 90 percent of the prior year's shipments, adjusted by the carryin and desirable carryout inventories.

At one time, § 989.54(a) also specified actual tonnages for desirable carryout for each varietal type regulated. However, in 1989, these tonnages were suspended from the order, and flexibility was added so that the Committee could adopt a formula for desirable carryout in the order's rules and regulations. The formula has allowed the Committee to periodically adjust the desirable carryout to better reflect changes in each season's marketing conditions.

The formula for desirable carryout has been specified since 1989 in § 989.154. Initially, the formula was established so that desirable carryout was based on shipments for the first 3 months of the prior crop year—August, September, and October (the crop year runs from August 1 through July 31). This amount was gradually reduced to 2 1/2 months in 1991-92, 2 1/4 months in 1995-96, and to 2 months in 1996-97. The Committee reduced the desirable carryout between 1991-1997 because it believed that an excessive supply of raisins was available early in a new crop year creating unstable market conditions.

In 1998, the Committee determined that, because of the reduced desirable carryout, not enough raisins were being made available for growth. Thus, the desirable carryout was increased to 2 1/2 months of prior year's shipments to allow for a higher trade demand figure and, thus, a higher free tonnage percentage, making more raisins available to handlers, especially for immediate use early in the season when supplies are often tight. This action also allowed desirable carryout to move towards what handlers actually hold in inventory at the end of a crop year, or about 100,000 tons. The Committee continued this practice and, in 2000, desirable carryout was changed to equal a rolling average of 3 months of prior year's shipments (August, September, and October) over the past 5 years, dropping the high and low figures.

At a meeting on June 27, 2002, the Committee reviewed the desirable carryout level. Most Committee members believe that the supply of free tonnage raisins on the market has once again become excessive and is contributing to unstable market conditions. The following table illustrates how handler inventories for NS raisins have been building in recent years:

To moderate the oversupply of marketable tonnage early in the crop year, the Committee recommended reducing the desirable carryout level for all varietal types of raisins from a rolling average of 3 months (August, September, and October) to 2 1/2 months (August, September, and one-half of October) of prior year's shipments over the past 5 years, dropping the high and low figures. Committee staff estimated that this change to the desirable carryout level would reduce the 2002 trade demand for NS raisins by 15,000 tons. Decreasing the trade demand will reduce the free tonnage percentage, thus, making less free tonnage available to handlers for immediate use.

The Committee's vote on this action was 41 in favor and 5 opposed. Two of the members voting no commented that the large carryout at the end of the current crop year was due mainly to an extra 32,000 tons of reserve raisins that were purchased by handlers in September 2001. They believe that the carryout problem will correct itself next season. Other members commented that this action would create a hardship on producers by reducing the free tonnage percentage, thereby reducing producer payments. After much deliberation, the majority of Committee members supported reducing the desirable carryout from a rolling average of 3 to 2 1/2 months of shipments over the past 5 years, dropping the high and low figures.

Most of the discussion at the Committee's meeting concerned the desirable carryout level for NS raisins. NS raisins are the major commercial varietal type of raisin produced in California. With the exception of the 1998-99 crop year, volume regulation has been implemented for NS raisins for the past several seasons. However, the Committee also believes that the decrease in desirable carryout should apply to the other varietal types of raisins covered under the order.

The raisin industry continued to explore other avenues to reduce the oversupply of California raisins, including implementing a “surplus pool and non-harvest” program for the 2002 crop year. However, rulemaking would be required as appropriate.

The Committee met on July 24, 2002, and revisited its oversupply situation and the desirable carryout issue. As a result, the Committee voted to further reduce the NS supply by decreasing the NS desirable carryout to a rolling average of 2 months (August and September) of prior year's shipments over the past 5 years, dropping the high and low figures, or 60,000 natural condition tons, whichever is higher. Committee staff estimated that this would reduce the 2002 trade demand for NS raisins by another 15,000 tons, or a total of 30,000 tons. The desirable carryout for all other varietal types would remain at the 2 1/2 month level recommended in June 2002.

The Committee's vote on this action was 32 in favor, 10 opposed, and 2 abstentions. The members voting no were primarily concerned that this action would reduce the free tonnage percentage and producer payments.

Although this action will tighten the supply of raisins available early in the season, handlers will still be provided an opportunity to increase their inventories, if necessary, by purchasing raisins from the reserve pool under order-mandated 10 plus 10 offers and other releases of reserve raisins available under the order. The 10 plus 10 offers are two offers of reserve pool raisins, which are made available to handlers each season. For each such offer, a quantity of raisins equal to 10 percent of the prior year's shipments is made available for free use. Although this rule tends to tighten the supply of raisins early in the season, handlers will still have the opportunity to obtain additional raisins from the 10 plus 10 offers. Thus, paragraph (a) in § 989.154 is modified accordingly.

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

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

There are approximately 20 handlers of California raisins who are subject to regulation under the order and approximately 4,500 raisin producers in the regulated area. Small agricultural service firms are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $5,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000. Thirteen of the 20 handlers subject to regulation have annual sales estimated to be at least $5,000,000, and the remaining 7 handlers have sales less than $5,000,000. No more than 7 handlers, and a majority of producers, of California raisins may be classified as small entities.

This rule reduces the desirable carryout used to compute the yearly trade demand for raisins regulated under the order. Trade demand is computed based on a formula specified under § 989.54(a) of the order. It is also part of another formula used to determine volume regulation percentages for each crop year, if necessary. Desirable carryout, one factor in this formula, is the amount of tonnage from the prior crop year needed during the first part of the next crop year to meet market needs, before new crop raisins are available. This rule reduces the desirable carryout specified in paragraph (a) of § 989.154 for NS raisins from a rolling average of 3 months (August, September, and October) to 2 months (August and September) of prior year's shipments for the past 5 years, dropping the high and low figures, and dividing the remaining sum by three, or 60,000 natural condition tons, whichever is higher. This rule also reduces the desirable carryout for all other varietal types covered under the order from 3 months (August, September, and October) to 2 1/2 months (August, September, and one-half of October) of prior year's shipments for the past 5 years, dropping the high and low figures, and dividing the remaining sum by three.

The desirable carryout level applies uniformly to all handlers in the industry, whether small or large, and there are no known additional costs incurred by small handlers. As previously mentioned, reducing the desirable carryout will reduce the trade demand and free tonnage percentage, thus making less raisins available to handlers early in the season. This action is expected to help reduce the burdensome supply of California raisins, thereby improving market conditions. Handlers will be provided opportunities throughout the crop year to purchase raisins from the reserve pool to increase their inventories.

The Committee considered a number of alternative levels of desirable carryout. The Committee has an appointed subcommittee, which periodically holds public meetings to discuss changes to the order and other issues. The subcommittee met on June 26, 2002, and discussed desirable carryout. Some industry members supported maintaining the status quo. Others supported an incremental reduction to the desirable carryout, reducing the level to a rolling average of 2 3/4 months in 2002, and to a rolling average of 2 1/2 months in 2003. The subcommittee ultimately recommended to the full Committee in June that the desirable carryout be reduced for all varietal types to a rolling average of 2 1/2 months of prior year's shipments for the past 5 years, dropping the high and low figures, and dividing the remaining sum by three. The full Committee adopted the subcommittee's June recommendation.

As mentioned earlier, the raisin industry continued to explore other avenues to reduce the oversupply of California raisins, including implementing a “surplus pool and non-harvest” program for the 2002 crop year. However, rulemaking would be required as appropriate.

The Committee revisited the desirable carryout issue on July 24, 2002. At that meeting, the Committee reviewed an alternative proposal that would revise the trade demand formula by eliminating the adjustment for carryin and carryout inventory. The Committee also reviewed the merits of reducing the desirable carryout for NS raisins to a rolling average of 2 months of prior year's shipments over the past 5 years, dropping the high and low figures, and dividing the remaining sum by three, or 60,000 natural condition tons, whichever is higher. After much discussion, the majority of Committee members supported further reducing the desirable carryout for NS raisins to this level. Committee staff estimated that this would reduce the 2002 trade demand for NS raisins by another 15,000 tons, or a total of 30,000 tons. The desirable carryout for all other varietal types would remain at the 2 1/2 month level recommended in June 2002.

This rule imposes no additional reporting or recordkeeping requirements on either small or large raisin handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. Finally, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

In addition, the Committee's subcommittee meeting on June 26, 2002, and the Committee's meetings on June 27 and July 24, 2002, where this action was deliberated, were public meetings widely publicized throughout the raisin industry. All interested persons were invited to attend the meetings and participate in the industry's deliberations. Finally, all interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.

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

This rule invites comments on reducing the desirable carryout level specified under the order's regulations. Any comments received will be considered prior to finalization of this rule.

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

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect, and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) This rule needs to be in effect as soon as possible because the order specifies that the Committee must meet and compute trade demand on or before August 15 each year; (2) this action was recommended by more than two-thirds of the Committee members; (3) producers and handlers are aware of this action which was recommended by the Committee at a public meeting; and (4) this interim final rule provides a comment period for written comments and all comments timely received will be considered prior to finalization of this rule. Further, in view of the above, a ten-day comment period is deemed appropriate.

The regulations in 9 CFR part 93 (referred to below as the regulations) regulate the importation of certain animals and birds, including pet birds, to prevent the introduction of communicable diseases of livestock and poultry.

On January 11, 2002, we published in the Federal Register (67 FR 1418-1419, Docket No. 01-023-1) a proposal to amend the regulations to allow the use of microchip implants as an acceptable form of identification for pet birds of U.S. origin returning to this country after being outside the United States.

We solicited comments concerning our proposal for 60 days ending March 12, 2002. We received four comments by that date. They were from private citizens, one breeder, and one group of students who had conducted an informal survey of seven local avian veterinarians and pet stores. All of the commenters were in favor of allowing the use of microchip implants as an acceptable form of identification for pet birds of U.S. origin returning to this country after being outside the United States. One commenter did suggest that a public hearing might be necessary “to provide affected parties an opportunity to present information that will later go into consideration as the final amendment is made.” Given the limited scope of the rulemaking and the small number of commenters who responded to the proposal, we find that a public hearing is unnecessary.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, without change.

This rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

We are amending the regulations to allow the use of microchip implants as an acceptable form of identification for pet birds of U.S. origin returning to this country after being outside the United States. The regulations have previously provided only for the use of leg bands or tattoos to identify such birds, but microchips have become the preferred method of identification used by avian veterinary practitioners. This action provides for the use of an additional means of identifying certain U.S. origin pet birds.

The groups affected by this action are pet bird owners who travel with their birds outside the United States and microchip manufacturers. According to the port of entry records of the Animal and Plant Health Inspection Service (APHIS), approximately 400 bird owners traveled outside of the United States with their pet birds in calendar year 2000. Under this final rule, those bird owners will be allowed to use microchip identification instead of the leg bands or tattoos that had been provided for by the regulations. Bird owners will benefit from this change because it is becoming more difficult to find a veterinarian who carries leg bands for pet bird identification, and tattoos are rarely used to identify birds any more. Microchips will thus make the task of identifying a pet bird before leaving the United States more convenient. In most cases, an APHIS inspector at the port of entry will be able use a microchip scanner to confirm the identity of the bird without handling the bird or removing it from the cage, thus avoiding additional stress on the bird.

Bird owners who choose to identify their birds with a microchip will have to pay $25 to $40 per microchip plus the cost of the veterinary office visit to insert the microchip. The cost of the microchips is projected to be slightly higher than the conventional leg band, although current costs for leg bands and tattoos are not available due to the lack of veterinarians who will perform these services.

Microchip manufacturers may benefit from a slight increase in microchip sales generated by this rule. It appears that all potentially affected microchip manufacturers (NAICS code 334111) are small entities, according to Small Business Administration criteria (i.e., 1,000 or fewer employees).

In summary, this rule provides pet bird owners with an additional means of identifying their pet birds while allowing APHIS to maintain the high level of security required in order to keep avian diseases, such as exotic Newcastle disease and highly pathogenic avian influenza, from entering the United States.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

This final rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Transport Canada Civil Aviation (TCCA), which is the airworthiness authority for Canada, recently notified the FAA that an unsafe condition may exist on all Bombardier Model CL-600-2B19 series airplanes. TCCA advises that endurance test results indicate that Appendix B—Airworthiness Limitations, Part 2, of the Canadair Regional Jet Maintenance Requirements Manual must be revised to incorporate life limits for certain horizontal stabilizer trim actuators (HSTAs), and replacement of those HSTAs to prevent failure of key components. Such failure, if not corrected, could result in loss of horizontal trim control and consequent reduced controllability of the airplane.

Bombardier has issued Canadair Regional Jet Temporary Revision (TR) 2B-816, dated November 28, 2001, which describes procedures for incorporating life limits for the HSTAs, Canadair part number (P/N) 601R92305-1 (vendor P/N 8396-2), and Canadair P/N 601R92305-3 (vendor P/N 8396-3), into Appendix B—Airworthiness Limitations, Part 2, of the Canadair Regional Jet Maintenance Requirements Manual. Accomplishment of the action specified in the TR is intended to adequately address the identified unsafe condition. TCCA classified this service information as mandatory and issued Canadian airworthiness directive CF-2002-20, dated March 20, 2002, in order to assure the continued airworthiness of these airplanes in Canada.

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

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, this AD is being issued to prevent failure of key components of the HSTAs, which could result in loss of horizontal trim control and consequent reduced controllability of the airplane. This AD requires revising Appendix B—Airworthiness Limitations, Part 2, of the Canadair Regional Jet Maintenance Requirements Manual to incorporate life limits for certain HSTAs, and replacing the HSTAs with new or serviceable HSTAs. The actions are required to be accomplished per the service information described previously, except as discussed below.

Operators should note that the previously referenced Canadair airworthiness directive and TR do not include specific procedures for the replacement action. However, this AD requires replacement of the HSTAs with new or serviceable HSTAs per a method approved by the FAA.

In accordance with airworthiness standards requiring “damage tolerance assessments” for transport category airplanes [§ 25.571 of the Federal Aviation Regulations (14 CFR 25.571), and the Appendices referenced in that section], all products certificated to comply with that section must have Instructions for Continued Airworthiness (or, for some products, maintenance manuals) that include an Airworthiness Limitations Section (ALS). That section must set forth:

• Mandatory replacement times for structural components,

• Structural inspection intervals, and

• Related approved structural inspection procedures necessary to show compliance with the damage-tolerance requirements.

Compliance with the terms specified in the ALS is required by §§ 43.16 (for persons maintaining products) and 91.403 (for operators) of the Federal Aviation Regulations (14 CFR 43.16 and 91.403).

In order to require compliance with these inspection intervals and life limits, the FAA must engage in rulemaking, namely the issuance of an AD. For products certificated to comply with the referenced part 25 requirements, it is within the authority of the FAA to issue an AD requiring a revision to the ALS that includes reduced life limits, or new or different structural inspection requirements. These revisions then are mandatory for operators under § 91.403(c) of the Federal Aviation Regulations (14 CFR 91.403), which prohibits operation of an airplane for which airworthiness limitations have been issued unless the inspection intervals specified in those limitations have been complied with.

After that document is revised, as required, and the AD has been fully complied with, the life limit or structural inspection change remains enforceable as a part of the airworthiness limitations. (This is analogous to ADs that require changes to the Limitations Section of the Airplane Flight Manual.)

Requiring a revision of the airworthiness limitations, rather than requiring individual inspections, is advantageous for operators because it allows them to record AD compliance status only once—at the time they make the revision—rather than after every inspection. It also has the advantage of keeping all airworthiness limitations, whether imposed by original certification or by AD, in one place within the operator's maintenance program, thereby reducing the risk of non-compliance because of oversight or confusion.

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-135-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.

The FAA has received reports indicating that significant corrosion of the electrical connectors located in the main wheel well was found on some Boeing Model 737 series airplanes. Those airplanes land on runways treated with deicing fluids containing potassium formate, which has been determined as the cause of the corrosion. Tests conducted by the airplane manufacturer revealed that corrosion inhibiting compounds (CIC) can be used to form a shield against such corrosion and will not affect the electrical components or the systems. Corrosion of the electrical connectors could result in incorrect functioning of critical airplane systems essential to safe flight and landing of the airplane.

We have reviewed and approved Boeing Alert Service Bulletin 737-24A1148, dated December 6, 2001, which recommends determining if airplanes have been exposed to runway deicing fluids containing potassium formate (by reviewing airport data on the type of components in deicing fluid used at airports that support their operations), and follow-on actions. If any airplane has been exposed, the service bulletin describes procedures for inspecting the line replaceable unit (LRU) electrical connectors (including the contacts and backshells) for corrosion. Signs of corrosion are the presence of moisture, corrosion pits, or white-colored material buildup on the connectors; black or reddish discoloration on the contacts; or loss of the olive-drab conversion coating on the backshells. The follow-on actions include cleaning the LRU connectors and applying CIC if no corrosion is found; and, if corrosion is found, replacing the LRU with a new LRU and applying CIC. The service bulletin also recommends an operational test of the affected systems after doing the applicable actions. Accomplishment of the inspections and follow-on actions specified in the service bulletin is intended to adequately address the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design, this AD requires accomplishment of the actions specified in the service bulletin described previously, except as discussed below.

The service bulletin specifies an examination of the electrical connectors in the wheel well of the main landing gear for corrosion. For the purposes of this AD, we have determined that the procedures in the service bulletin constitute a “detailed inspection.” Note 2 of this AD defines such an inspection.

The service bulletin specifies that no work is necessary for airplanes that have not been exposed to runways using deicing fluids containing potassium formate (this is determined by reviewing airport data, as specified previously). We have concluded that such airplanes, although not presently using those runways, could use them in the future due to changes in routes. Therefore, this AD requires operators of those airplanes to repeat the data review every 12 months.

The service bulletin states that airplane exposure to runway deicing fluids containing potassium format may be determined by reviewing airport data on the type of components in the deicing fluid used. This AD specifies that the determination be made in accordance with a review of the airport data, rather than specifying the determination in accordance with the service bulletin.

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-148-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.

The Departmento de Aviacao Civil (DAC), which is the airworthiness authority for Brazil, notified the FAA that an unsafe condition may exist on certain EMBRAER Model EMB-135 and -145 series airplanes. The DAC advises that one report indicated that the aft baffle assembly separated from the shell assembly of auxiliary power unit (APU) exhaust silencer, part number 4503801B. This separation was caused by the poor quality of some spot welds used in the aft joint of the APU exhaust silencer. This condition, if not corrected, could result in consequent separation of the aft baffle assembly from the airplane, which could cause damage to other airplanes during takeoff and landing operations, or injury to people on the ground.

EMBRAER has issued Alert Service Bulletin 145-49-A021, Change 01, dated May 13, 2002, which describes procedures for determining whether a defective APU exhaust silencer is installed on the airplane; and corrective actions, if necessary. If a defective APU exhaust silencer is found installed, corrective actions include reinforcing the spot welds on the exhaust silencer assembly with fasteners to ensure that the components are secure. Accomplishment of the action specified in the service bulletin is intended to adequately address the identified unsafe condition.

The EMBRAER service bulletin references Hamilton Sundstrand ASB-4503801-49-2, Revision 01, dated May 13, 2002, as a secondary source of information for the corrective actions required by this AD.

The DAC classified the EMBRAER service bulletin as mandatory and issued Brazilian airworthiness directive 2002-05-01, dated May 17, 2002, in order to assure the continued airworthiness of these airplanes in Brazil.

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

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, this AD is being issued to prevent separation of the aft baffle assembly from the APU exhaust silencer and consequent separation of the assembly from the airplane, which could cause damage to other airplanes during takeoff and landing operations, or injury to people on the ground. This AD requires determining whether a defective exhaust silencer for the auxiliary power unit is installed on the airplane; and corrective actions, if necessary. The actions are required to be accomplished in accordance with the EMBRAER service bulletin described previously, except as discussed below.

Operators should note that the EMBRAER service bulletin and Brazilian airworthiness directive specify certain serial numbers and airplanes on which the APU cowling was replaced during maintenance between January and April 2002. Regarding the specified dates, we contacted the Brazilian airworthiness authorities about why the applicability was limited to certain dates, and whether there was a change in maintenance practices after April 2002 that would prevent the installation of a defective APU exhaust silencer. In response, we were informed that no change was made to the maintenance practices after April 2002. For that reason, we cannot be sure that a defective assembly was not installed after that date. Therefore, the applicability of this AD also includes those airplanes on which the APU cowling has been replaced between January 1, 2002, and the effective date of this AD.

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

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications 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-166-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 .

The FAA has received a report indicating that an operator found one missing bolt and two loose bolts out of four bolts at the aft attachment locations on the outboard support of the inboard main flap on a Boeing Model 767 series airplane. There was evidence that the bolts were not installed tightly, though when the improper installation occurred has not been determined. The outboard support for the inboard main flap cannot carry limit load with one bolt missing in the aft attachment locations. Prior to this report, an evaluation by the airplane manufacturer had revealed that the titanium bolts on the inboard main flap on Model 767 series airplanes did not have an acceptable fatigue life or damage-tolerance rating. Missing, loose, or cracked bolts in this location, if not detected, could lead to loss of the inboard main flap, which could result in loss of control of the airplane.

The FAA has reviewed and approved Boeing Alert Service Bulletin 767-27A0176, Revision 1, dated June 6, 2002, which describes procedures for a one-time general visual inspection for missing bolts on the inboard and outboard support of the inboard main flap. If no bolt is missing, the service bulletin also describes a detailed inspection for gaps between the nut and surrounding structure or between shim and joint, which would indicate a loose bolt. (For airplanes listed in Group 1 in the service bulletin, the service bulletin recommends that this inspection for gaps be done repetitively.) If any gap is found, the service bulletin describes procedures for a torque check of the bolts. If any bolt is missing or any loose bolt is found, the service bulletin recommends removal of all bolts in the area, accomplishment of a fluorescent dye penetrant inspection for cracking of the bolts, and/or installation of new or serviceable bolts. For Group 1 airplanes, the service bulletin also provides instructions for replacement of the existing titanium bolts with new steel bolts, which eliminates the need for accomplishment of the inspections. For Group 1 airplanes, replacing the titanium bolts with new steel bolts is intended to adequately address the identified unsafe condition.

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 detect missing, loose, or cracked bolts on the inboard and outboard support of the inboard main flap and prevent loss of the inboard main flap, which could result in loss of control of the airplane. This AD requires accomplishment of the actions specified in the service bulletin described previously, except as discussed below.

The effectivity listing of the service bulletin includes all Boeing Model 767 series airplanes, line numbers 1 through 879, except Model 767-400ER series airplanes. However, this AD is applicable to all Model 767 series airplanes with those line numbers, including Model 767-400ER series airplanes. The FAA finds that, because the attachment joints of the supports for the inboard main flap on Model 767-400ER series airplane are similar to those on other Model 767 series airplanes, Model 767-400ER series airplanes may be subject to the same unsafe condition. If any bolt is missing or any gap is found on a Model 767-400ER series airplanes, this AD requires repairs to be accomplished before further flight per a method approved by the FAA, or per data meeting the type certification basis of the airplane approved by a Boeing Company Designated Engineering Representative authorized by the FAA to make such findings.

Although the recommended compliance time for the general visual inspection described in Boeing Alert Service Bulletin 767-27A0176, Revision 1, dated June 6, 2002, is 60 days from the issue date of the service bulletin, this AD requires the inspection within 90 days after the effective date of this AD. During the development of this AD, the FAA received information demonstrating that a 60-day compliance time would impose significant difficulties for the operators and a loss of in-service time. Additionally, the individuals both stated that the actions required would necessitate unscheduled intermediate maintenance visits, including specific facilities, resources, and scheduling. Two individuals point out that, since there have been no reported flap losses associated with the attachment bolts of the inboard main flap, a compliance time fairly longer than 60 days should provide an acceptable level of safety. One individual suggests that the compliance time be specified as, “within 9 months after the last inspection per Maintenance Planning Data items 5753-655-02E and 5753-555-02E, or 180 days after the effective date of the AD, whichever occurs later.” The other individual requests that the compliance time be specified as, “within 6 months.” (Copies of these comments are available in the Rules Docket for examination by interested persons.)

The FAA has determined that the compliance time may be extended somewhat from the 60-day compliance time suggested in the alert service bulletin. However, we have determined that the Maintenance Planning Data inspections are not sufficient to detect loose bolts. Therefore, the compliance times may not be based on the “last inspection per Maintenance Planning Data items * * *.” The required 90-day compliance time will provide an acceptable level of safety, yet still decrease the burden on operators. However, under the provisions of paragraph (f) of this AD, the FAA may approve requests for adjustments to the compliance time if data are submitted to substantiate that such an adjustment would provide an acceptable level of safety.

For all airplanes, the service bulletin specifies that an operator should submit a report to Boeing if any bolt is missing or cracked or any gap is found. This AD only requires a report to the FAA if any bolt is missing or any gap is found on a Model 767-400ER series airplane. For those airplanes, the report must contain the airplane's serial number, the total number of flight cycles and flight hours on the airplane, the number and specific location of discrepant bolts, and the nature of the discrepancy ( i.e. , missing bolt or gap found).

Also, for Group 1 airplanes, the service bulletin specifies repetitive inspections for gaps between the nut and surrounding structure or between shim and joint, a torque check of the bolts, and eventual replacement of the existing bolts with steel bolts. This AD does not require accomplishment of these actions.

This is considered to be interim action. We are currently considering requiring the repetitive inspections for gaps, the torque check for loose bolts, and the replacement of existing titanium bolts with steel bolts described in the referenced service bulletin. However, the compliance time for these actions would be sufficiently long so that notice and opportunity for prior public comment will be practicable.

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-141-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 .

Reports of fuel leakage due to cracked fuel line nipples on Univair 415 series and Models F1 and F1A airplanes caused FAA to issue AD 86-22-09, Amendment 39-5457. This AD requires you to do the following on Univair Models (ERCO) 415-C, (ERCO) 415-CD, (ERCO) 415-D, (ERCO) 415-E, (ERCO) 415-G, (Forney) F-1, and (Forney) F-1A airplanes:

These actions are specified in Univair Service Bulletin No. 24A, dated August 22, 1986.

In addition, the potential for fuel system failures due to the installation of part number (P/N) 914-2D dural elbow fittings on Erco (now Univair) Models 415-C, 415-CD, and 415-D airplanes caused FAA to issue AD 46-38-03. This AD requires you to replace this P/N 914-2 D dural elbow fitting with a P/N 914-2 elbow fitting.

The FAA has received reports of failure of the aluminum fuel line nipple, part number AN911-2D, on airplanes that were in compliance with AD 86-22-09. In one instance, a Model (ERCO) 415-C made an emergency landing because the failure led to engine fuel starvation.

AD 86-22-09 requires a one-time inspection of the part number AN911-2D fuel line nipple. Since 15 years have passed since issuance of that AD, most of the affected airplanes have had this inspection accomplished. If the fuel line nipple was not suspect at the time of inspection, then final AD compliance was obtained. In 15 years, cracks could develop in the aluminum fuel line nipple on these airplanes in compliance with AD 86-22-09.

In addition, Univair Service Bulletin No. 24A, dated August 22, 1986, also specifies replacing any aluminum fuel line nipple with a brass or steel fuel line nipple and installing double support tubes on the gascolator for those airplanes with a gascolator connected to the side of the carburetor. AD 86-22-09 required the fuel line nipple replacement only if damage was found during the one-time inspection and did not require installation of the double support tubes.

The installation of these parts would eliminate the need for AD 46-38-03.

This condition, if not corrected, could result in failure of the fuel line nipple or the gascolator because of the current airplane design configuration (aluminum fuel line nipples or no double support tubes on the gascolator). Such failure could result in a lack of fuel to the engine with consequent loss of control of the airplane.

We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain Univair (ERCO) 415-1986C, (ERCO) 415-CD, (ERCO) 415-D, (ERCO) 415-E, (ERCO) 415-G, (Forney) F-1, and (Forney) F-1A airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on October 4, 2001 (66 FR 50578). The NPRM proposed to supersede AD 86-22-09 with a new AD that would require you to accomplish the following on airplanes with the gascolator connected to the side of the carburetor:

The proposed AD would not affect those airplanes with the gascolator mounted on the firewall.

The FAA encouraged interested persons to participate in the making of this amendment. Comments received on the NPRM caused us to revise the proposed action to add requirements to replace the elbow fittings with brass or steel elbow fittings and inspect the fuel line fittings between the carburetor and gascolator for cracks or misalignment and replace as necessary.

Because these additions increased the burden upon the public above that already proposed, we issued a supplemental NPRM on April 5, 2002 (67 FR 18141, April 15, 2002).

We then encouraged interested persons to again participate in the making of this amendment. We did not receive any comments on the supplemental NPRM.

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

We estimate that this AD affects 2,500 airplanes in the U.S. registry.

We estimate the following costs to accomplish the replacement and installation:

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

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

1. The Federal Energy Regulatory Commission (Commission) is amending its regulations to establish a system of electronic registration for persons and companies wishing to submit documents to or receive documents from the Commission (collectively customers).

2. This order initiates a series of measures that will largely eliminate the transmission of paper documents between the Commission and its customers. Collectively, these measures will ensure the Commission's compliance with the Government Paperwork Elimination Act; 1 result in cost savings, such as elimination of mailing costs and courier services, to the Commission and its customers; facilitate the Commission's management of information about the persons and entities that do business with it; and make information submitted to and issued by the Commission available more promptly and in more accessible formats.

3. This measure follows several initiatives undertaken by the Commission to begin the transition to an electronic environment. On May 26, 1999, the Commission revised its rules to permit parties to Commission proceedings to serve documents upon one another electronically. Electronic Service of Documents, 64 FR 31493, FERC Stats. & Regs., Regulations Preambles ¶ 31,074 (June 11, 1999). On September 14, 2000, the Commission revised its rules to permit participants in Commission proceedings to begin, on a voluntary basis, filing submissions via the Internet (eFiling). Electronic Filing of Documents, 65 FR 57088, FERC Stats. & Regs., Regulations Preambles ¶ 31,107 (Sept. 21, 2000). At first, the Commission applied this initiative only to a limited range of document types, but has gradually permitted other types of submissions to be made electronically. See www.ferc.gov/documents/makeanelectronicfiling/doorbell.htm . In addition, electronic submission and dissemination of structured data, including FERC Forms 1, 2, 6, and 423, are possible through the Commission's web page.

4. This order will resolve difficulties the Commission has encountered in updating various lists that it maintains of customers to whom it sends various types of information. These include, for example, service lists of persons who are required to receive documents in connection with Commission proceedings  2 and mailing lists of persons who receive informational copies of various documents. Many of the entries on the various lists that the Commission maintains are obsolete or duplicative, resulting, among other problems, in extensive waste in mailing out unneeded or unwanted copies of documents. The eRegistration system will allow the Commission to compile a comprehensive, more accurate list of its customers.

5. Electronic registration will serve as the gateway to a number of electronic services at the Commission that are designed to transmit documents electronically between the Commission and its customers. These services, some of which are already in use, will permit the electronic submission of information to the Commission, including tariffs, forms, and documents submitted in docketed proceedings. Electronic registration also will apply to services that the Commission will be instituting that will allow customers to sign up to receive information about or be notified of events in docketed proceedings. The registration system implemented pursuant to this rulemaking will enable customers to submit necessary information once, rather than having to register separately to use each system. A brief description of the services to which electronic registration will pertain is included in Section III. C.

6. Electronic registration will apply only to specified applications; it will not be required for all submissions to the Commission. For example, it will not be required for correspondence that does not relate to docketed proceedings from members of Congress or the general public. It will not be required for a customer searching for documents on the Federal Energy Regulatory Records and Information System (FERRIS). It will not apply to requests under the Freedom of Information Act. 3 It also will not apply to certain correspondence in docketed proceedings that the Office of the Secretary finds to qualify for an exemption because the submissions are from members of the public who likely are one-time submitters.

7. The registration process will be brief and simple. Customers will input a few lines of information, generally a name, address, phone number and fax number. They will then input the information that the system will use to identify them: An e-mail address a password and a password hint. There will be a paper registration process for customers submitting paper documents to the Commission as the result of a waiver of electronic filing requirements for good cause shown. Customers will be able to access and manipulate their own data, thus keeping it current to ensure reliable service. Separate rulemakings will address other FERC information systems.

8. Customers wishing to transact business at the Commission through any of the electronic services described in section III. C. will register via the Internet at http://www.ferc.gov. It will be possible for multiple persons or entities to be associated with one another. Thus, for example, a company that is a participant in a proceeding at the Commission may be represented by one or more persons or entities, such as attorneys or law firms, so that Commission issuances will be distributed to all the persons or entities representing that company.

9. When a customer seeks to conduct an electronic transaction through the Commission's Web site, if that customer is not already registered, the customer will be automatically transferred to the eRegistration page. Alternately, the customer will be able to access the eRegistration page directly to register or to update registration information. The eRegistration page will contain data fields that must be filled in with specified identifying data.

10. Generally speaking, an individual customer—as opposed to an entity like a company or law firm—will receive a user ID, which will be the customer's e-mail address. All electronic services will also require a password selected by the user. For services requiring a higher level of security and authentication, further security requirements may be necessary as well. The exact nature of this security will be described at a later time, when filing of sensitive information becomes functional.

11. All customers also will receive a unique numeric identifier. This identifier may be used in identifying the customer in connection with electronic applications.

12. When an individual customer registers, that customer will, if appropriate, designate the entity—again, such as a company or law firm—with which that customer is associated. The first time that eRegistration information is entered on behalf of an entity, that entity will be assigned its own unique numeric identifier. Other identifying information, such as a Dun & Bradstreet number, may also be entered. If the entity has already been registered, the individual customer may select it from an index. If the individual is not aware that the entity has already been registered and tries to enter information about the entity, the system will alert the individual to the possibility that the entity is already registered and make an index available from which he or she may choose.

13. When an individual registers an entity with eRegistration, there will be an opportunity to list an additional contact for the entity—most likely another employee or official of the entity. This will ensure that the entity will receive necessary information should the individual who initially registers for the entity become unavailable. Customers will bear the responsibility of managing their own eRegistration information, just as a participant in a Commission proceeding is responsible for monitoring its affairs to ensure that the persons claiming to represent it are in fact authorized to do so.

14. Upon successful eRegistration, the customer will receive an e-mail containing the customer's user ID and numeric identifier, and any other identifying information that has been entered.

15. The process of associating an individual customer with multiple entities will not be a part of the eRegistration system, but instead will take place in the individual electronic services. For example, an attorney will be able to represent several different clients in multiple proceedings, but the attorney need not “register” on behalf of every client or in connection with every proceeding. Instead, the attorney will register once as an individual, if appropriate also designating a law firm as the entity with which the attorney is associated. When the attorney submits a document for filing in a particular proceeding, he or she will designate the appropriate client as part of the eFiling process. The attorney will receive service through the functions of the eService and eList services (described below), which will be addressed in a later rulemaking. Customers using eRegistration to represent other persons or entities are subject to Rule 2005, 4 and thus will be regarded as representing that they have the authority to undertake such representation.

16. The Commission understands that some customers will lack the means for submitting and receiving documents electronically and will provide for waiver of the mandatory aspects of electronic submissions and distribution. This rulemaking includes a delegation of authority to the Secretary to grant waivers of the eRegistration requirement. It will be possible for a customer to submit documents in hard copy by applying for a waiver for good cause shown. Registration, however, will still be required and will be accomplished by a paper process. Like electronic customers, customers registering through the paper process will receive a unique numeric identifier. This identifier must appear on paper submissions; without it, submissions will be rejected. Waivers of electronic registration will be valid for one year. It then will be necessary for a customer to register electronically or apply for another waiver. Customers registering by paper will be notified approximately three months prior to the expiration of their registration.

17. In addition to the waiver provision, the Commission is exempting from the registration requirement certain situations where registration would not be practical for, or beneficial to, the customer. The Commission often receives letters and other communications from individual citizens who are not familiar with, and do not regularly participate in, Commission proceedings. When such communications pertain to a particular proceeding, they are accepted for filing in that proceeding, become part of the official record, and are considered by the Commission in making the ultimate decision in the case. Registration in such situations would be an unnecessary formality because the customer often is unlikely to participate further in Commission proceedings. In some such cases, however, the customer may have the capability to register electronically and thus might not qualify for a waiver. The rulemaking thus exempts such communications from the registration requirements. 5

18. This rulemaking will become effective January 7, 2003. Electronic registration thus will not be required prior to that time. The eRegistration system will, however, become operational, and available for use on a voluntary basis in late August 2002. Customers should check the Commission's Web site at http://www.ferc.gov for information about when eRegistration will become operational. This period of voluntary use will give both the Commission and its customers the opportunity to observe the system's functions. The Commission strongly urges customers to register well in advance of the effective date so as to familiarize themselves with the system. In addition, the Commission invites informal comments and suggestions regarding the system prior to the effective date. Comments or suggestions may be sent to the Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, or to ERegComments@FERC.gov. The Commission requests that informal comments and suggestions be submitted by October 1, 2002, so as to give Commission staff time to implement any needed changes before this rule takes effect.

19. The following is a brief summary of the services for which electronic registration will be required:

20. eFiling. The Commission has instituted electronic filing of documents in its proceedings on a voluntary basis. Currently, many categories of documents may be submitted via the Internet, although some documents still may not. 6 Some time prior to October 1, 2003, however, the Commission will extend electronic filing to all documents submitted in Commission proceedings and will require all participants in those proceedings to submit documents electronically. There will be a waiver for participants for whom electronic submissions are impractical.

21. eForms. The Commission will establish an integrated interface for its customers to file structured data. The forms that will be filed electronically include, but may not be limited to, Forms 1, 2, 6 and 423. Customers filing such forms will be required to register electronically.

22. eReports. This system will provide an interface for customers submitting structured data in connection with Order No. 2001, issued by the Commission on April 25, 2002. 7

23. eTariffs. This system will provide an interface for customers filing tariffs with the Commission. 8

24. eDistribution. Electronic distribution refers to documents being distributed by the Commission, or with the Commission's assistance, as opposed to electronic filing, forms, reports and tariffs, all of which refer to documents being submitted to the Commission. There are several sub-categories of electronic distribution:

eService: Electronic service means the electronic distribution by the Commission of documents to participants in Commission proceedings, as required by 18 CFR 385.2010(b) (2001). After October 1, 2003, only electronic service will meet the Commission's legal service requirements under regulatory revisions that the Commission will implement prior to that time. The Commission will include a waiver provision for participants who show that it is impractical for them to receive service of documents electronically. With respect to legal service requirements among participants in Commission proceedings, the Commission's rules already allow participants to agree among themselves to serve documents electronically rather than serving paper copies. 9

eList: The Commission will maintain a list of participants in each Commission proceeding that participants will use to serve documents upon one another as required by 18 CFR 385.2010(a) (2002). Electronic Registration will become a pre-requisite for addition to the Service List (eList) by the Secretary, sometime prior to October 1, 2003, although provision will be made for participants for whom sending and receiving electronic documents is impractical.

eNotification: The Commission currently distributes issuances in Commission proceedings to various interested persons who are not participants. Such recipients include state and federal elected officials, state commissions, and other state and federal resource agencies. The Commission will take steps to ensure that these persons continue to receive such information.

eSubscription: The Commission will establish a service that allows interested persons to subscribe to categories of documents published by FERC and receive e-mail stating when documents pertaining to subscribed-for categories are published. The first implementation of this service will permit customers to subscribe to individual FERC proceedings, i.e., dockets; access (FERRIS) online; and automatically receive documents published therein. Participation in this service is voluntary. A customer choosing to participate in eSubscription, however, will have to access the service through eRegistration. That customer will be required to supply eRegistration with an e-mail address and password, and may provide other registration information on a voluntary basis.

25. The Office of Management and Budget's (OMB's) regulations require that OMB approve certain information collection requirements imposed by agency rule. 10 OMB regulations provide an exemption where a person is required to provide only facts that are necessary for identification. 11 This rulemaking requires only such information and thus OMB approval is not required.

26. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment. 12 This Final Rule will not have such an effect. Part 380 of the Commission's regulations lists a number of situations in which an Environmental Analysis or Environmental Impact Statement will not be done. Included are exemptions for procedural, ministerial or internal administrative actions, and for information gathering, analysis and dissemination. 13 This rulemaking is exempt under those provisions.

27. The Regulatory Flexibility Act of 1980 (RFA) 14 generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities. The Commission finds that this rule will not have such an impact on small entities. The Commission anticipates that its customers will achieve savings from the elimination of paper documents. The large majority of the Commission's customers already employ the technology that will be necessary for compliance with this rulemaking. For customers for whom the use of such technology is impractical, registration by paper will be possible.

28. In addition to publishing the full text of this document in the Federal Register , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through FERC's Home Page ( http://www.ferc.gov ) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426.

29. From FERC's Home Page on the Internet, this information is available in FERRIS. The full text of this document is available on FERRIS in PDF and WordPerfect format for viewing, printing, and/or downloading. To access this document in FERRIS, type the docket number excluding the last three digits of this document in the docket number field.

30. User assistance is available for FERRIS and the FERC's Web site during normal business hours from our Help line at (202) 208-2222 or the Public Reference Room at (202) 208-1371 Press 0, TTY (202) 208-1659. E-Mail the Public Reference Room at public.referenceroom@ferc.gov .

31. This Final Rule will take effect on January 7, 2003. Pursuant to 5 U.S.C. 804(3)(C) (2002), agencies are not required to notify Congress of any Final Rule that concerns matters of “agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties.” This rulemaking falls within that provision. Furthermore, 5 U.S.C. 804(3)(A) exempts rules that provide for registration and permit new or improved applications of technology from the Congressional review requirements. Provisions governing Congressional review of agency rulemaking, 15 therefore do not apply.

32. The Commission is issuing this as a final rule without a period for public comment. Under 5 U.S.C. 553(b) (2002), notice and comment procedures are unnecessary where a rulemaking concerns only agency procedure and practice, or where the agency finds that notice and comment is unnecessary. This rule concerns only matters of agency procedure and will not significantly affect regulated entities or the general public. In addition, the Commission is inviting informal comments about electronic registration during the voluntary period that will run from late August 2002, to January 7, 2003. Therefore, the Commission finds notice and comment procedures to be unnecessary.

1. The Federal Civil Penalties Inflation Adjustment Act of 1990  1 (Adjustment Act) as amended by the Debt Collection Improvement Act of 1996  2 (DCIA) provided for the regular evaluation of civil monetary penalties (CMP) to ensure that they continued to maintain their deterrent value and that penalty amounts due to the Federal Government were properly accounted for and collected. On April 26, 1996, the Adjustment Act was amended by the DCIA to require that each agency issue regulations to adjust its CMPs for inflation at least every four years. The amendment further provides that any resulting increases in a CMP due to the inflation adjustment should apply only to the violations that occur subsequent to the date of the publication in the Federal Register of the increased amount of the CMP. The first inflation adjustment of any penalty shall not exceed ten percent of such penalty.

2. A CMP is defined as any penalty, fine, or other sanction that: (1) Is for a specific monetary amount as provided by Federal law, or has a maximum amount provided for by Federal law; (2) is assessed or enforced by an agency pursuant to Federal law; and (3) is assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts. This final rule adjusts the civil penalties that are established by law and assessed or enforced by the Commission.

3. Section 5 of the DCIA sets forth the formula for adjusting the penalties for inflation:

4. The DCIA rounding rules require that an increase be rounded as follows:

1. If the increase is greater than $0 and less than or equal to $100, round to the nearest multiple of $10.

2. If the increase is greater than $100 and less than or equal to $1,000, round to the nearest multiple of $100.

3. If the increase is greater than $1,000 and less than or equal to $10,000, round to the nearest multiple of $1,000.

4. If the increase is greater than $10,000 and less than or equal to $100,000, round to the nearest multiple of $5,000.

5. If the increase is greater than $100,000 and less than or equal to $200,000, round to the nearest multiple of $10,000.

6. If the increase is greater than $200,000, round to the nearest multiple of $25,000.

5. The Commission is implementing the following adjustments:

6. The Administrative Procedure Act (APA) requires rulemakings to be published in the Federal Register and also mandates that an opportunity for comments be provided when an agency promulgates regulations. However, the APA exempts certain rules of agency procedures from its notice and comment requirements. 3 The Commission is required by the DCIA to adjust CMPs for inflation. Additionally, the formula for the amount of the penalty adjustment is prescribed by Congress and is not subject to the exercise of discretion by the Commission. The Commission is only required to determine the amount of inflation adjustments by performing administrative computations. Accordingly, the Commission has determined for good cause that public notice and comment are unnecessary, impractical, or contrary to the public interest and that the rule should be published in final form.

In a document published in the Federal Register on July 20, 2000 (65 FR 44999), the Department of Veterans Affairs proposed to establish a mechanism for the payment of accelerated death benefits to terminally ill Servicemembers' Group Life Insurance (SGLI) and Veterans' Group Life Insurance (VGLI) policyholders. We requested comments for a 60-day period that ended September 18, 2000. We received no comments. Based on the rationale set forth in the proposed rule, we are adopting the proposed rule as a final rule with minor nonsubstantive changes.

At the time of the publication of the proposed rule, the accelerated benefit provisions were only authorized for servicemembers and veterans. Recently, Public Law 107-14 amended 38 U.S.C. 1965 and 1967 to expand the provisions to SGLI family coverage. Accordingly, the final rule would apply also to SGLI family coverage. SGLI family coverage is provided as a rider to an insured member's SGLI coverage and therefore only the insured member may apply for SGLI family coverage accelerated benefits.

The final rule also reflects a change in the address for submitting an application for accelerated benefits. For consistency, this change also revises § 9.1(b). In, addition, changes are made for purposes of clarification.

This document contains provisions constituting collections of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520) approved by OMB under Control No. 2900-0618.

The Unfunded Mandates Reform Act requires (in section 202) that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector of $100 million or more in any given year. This rule would have no consequential effect on State, local, or tribal governments.

This document has been reviewed by the Office of Management and Budget under Executive Order 12866.

The Secretary hereby certifies that this regulatory amendment will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612. This amendment would not directly affect any small entities. Only persons insured under the government's SGLI and VGLI programs could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this regulatory amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

The Catalog of Federal Domestic Assistance number for the program affected by this document is 64.103.

Throughout this document, “we,” “us” and “our” refer to EPA.

On January 4, 1990, the State of Arizona submitted a revision to Rule 314 in the MCESD portion of the SIP, which we disapproved in part on January 4, 2001 (66 FR 730). Our disapproval action started an 18-month clock beginning on February 4, 2001 for the imposition of one sanction (followed by a second sanction 6 months later) and a 24-month clock for promulgation of a Federal Implementation Plan (FIP). The State subsequently submitted amended Rule 314 on March 22, 2002. We have taken direct final action on this submittal pursuant to our modified direct final policy set forth at 59 FR 24054 (May 10, 1994). In the Rules and Regulations section of today's Federal Register , we have issued a direct final full approval of the State of Arizona's submittal of its SIP revision. In addition, in the Proposed Rules section of today's Federal Register , we have proposed full approval of the State's submittal. Based on the proposed full approval set forth in today's Federal Register , we believe that it is more likely than not that the State has corrected the original disapproval deficiencies. Therefore, we are taking this final rulemaking action, effective on publication, finding that the State has corrected the deficiencies. However, we are also providing the public with an opportunity to comment on this final action. If, based on any comments on this action and any comments on our proposed full approval of the State's submittal, we determine that the State's submittal is not fully approvable and this final action was inappropriate, we will either propose or take final action finding that the State has not corrected the original disapproval deficiencies. As appropriate, we will also issue an interim final determination or a final determination that the deficiency has been corrected.

This action does not stop the sanctions clock that started for this area on February 4, 2001. However, this action will stay the imposition of the offsets sanction and will defer the imposition of the highway sanction. If our direct final action fully approving the State's submittal becomes effective, such action will permanently stop the sanctions clock and will permanently lift any imposed, stayed or deferred sanctions. If we must withdraw the direct final action based on adverse comments and we subsequently determine that the State, in fact, did not correct the disapproval deficiencies, we will also determine that the State did not correct the deficiencies and the sanctions consequences described in the sanctions rule will apply. See 59 FR 39832 (August 4, 1994), codified at 40 CFR 52.31.

We are taking interim final action finding that the State has corrected the disapproval deficiencies that started the sanctions clock. Based on this action, imposition of the offset sanction will be stayed and imposition of the highway sanction will be deferred until our direct final action fully approving the State's submittal becomes effective or until we take action proposing or finally disapproving in whole or part the State submittal. If our direct final action fully approving the State submittal becomes effective, at that time any sanctions clocks will be permanently stopped and any imposed, stayed, or deferred sanctions will be permanently lifted.

Because we have preliminarily determined that the State has an approvable submittal, relief from sanctions should be provided as quickly as possible. Therefore, we are invoking the good cause exception to the 30-day notice requirement of the Administrative Procedure Act because the purpose of this notice is to relieve a restriction. See 5 U.S.C. 553(d)(1).

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely stays and defers federal sanctions. Accordingly, the administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule only stays an imposed sanction and defers the imposition of another, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely stays a sanction and defers another one, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

This rule does not contain technical standards, thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings' issued under the executive order.

This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. However, section 808 provides that any rule for which the issuing agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rule) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest, shall take effect at such time as the agency promulgating the rule determines. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefor, and established an effective date of August 12, 2002. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Throughout this document, “we,” “us” and “our” refer to EPA.

Table 1 lists the rule we are approving with the dates that it was revised by the local air agency and submitted by the Arizona Department of Environmental Quality.

On June 12, 2002, this rule submittal was found to meet the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review.

A version of Rule 314 was finalized as a limited approval into the SIP and limited disapproval with sanctions on January 4, 2001 (66 FR 730).

Rule 314 prohibits open outdoor fires unless a permit is obtained and the Control Officer has not declared a restricted burn period. The following are exemptions from these requirements:

• Fires for cooking, warmth for humans, recreation, branding of animals, the use of orchard heaters for frost protection, and fire extinguisher training.

Exemptions from only the permit requirement are as follows:

• Disposal of dangerous material, testing of explosive or flammable material, and fire fighting training.

The TSD has more information about this rule.

Generally, SIP rules must be enforceable (see section 110(a) of the CAA) and must not relax existing requirements (see sections 110(l) and 193). Section 189(a) of the CAA requires moderate PM-10 nonattainment areas to implement reasonably available control measures (RACM), including reasonably available control technology (RACT) for stationary sources of PM-10. Section 189(b) requires that serious PM-10 nonattainment areas, in addition to meeting the RACM/RACT requirements, implement best available control measures (BACM), including best available control technology (BACT). The Phoenix metropolitan area is a serious PM-10 nonattainment area. The MCESD regulates certain sources of PM-10 in the nonattainment area.

EPA's guidance for both moderate and serious PM-10 nonattainment areas provides that RACM/RACT and BACM/BACT are required to be implemented for all source categories unless the State demonstrates that a particular source category does not contribute significantly to PM-10 levels in excess of the NAAQS ( i.e., de minimis sources). See Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990, 59 FR 41998, 42011 (August 16, 1994). PM-10 emissions from the source categories that are the subject of this direct final action are de minimis according to the December 1999 Revised MAG 1999 Serious Area Particulate Plan for PM-10 for the Maricopa County Nonattainment Area (PM-10 Plan). Therefore, Rule 314 is not required to meet BACM/BACT control levels. However, the State submitted Rule 314 as a RACM/RACT rule on which the PM-10 Plan relies to achieve attainment. Thus EPA is evaluating Rule 314 to determine if it meets RACM/RACT requirements, but not for BACM/BACT.

We believe the rule is consistent with the relevant policy and guidance regarding enforceability, SIP relaxations, and fulfilling RACM/RACT. All of the deficiencies identified in our previous limited approval and limited disapproval action of Rule 314 on January 4, 2001 have been adequately addressed as follows:

• We disapproved the exemption to burn dangerous materials, because the “dangerous material” is not defined. A satisfactory definition was added to the rule. § 314.202.

• We disapproved the exemption permitting open burning with a stipulation of conditions and time of day, because criteria for allowing exemptions were not specified and were subject to the discretion of the Control Officer. A requirement was added for a permittee to call the fire agency with jurisdiction and the Control Officer for permission to commence burning. The Control Officer must base his decision to allow burning on National Weather Service forecasts or other meteorological analyses. We have determined that this approach fulfills the requirements of RACM/RACT. § 314.302.

• We disapproved an exemption to burn with an air curtain destructor, because the Control Officer had unrestricted discretion. An appendix was added to Rule 314 to describe procedures and guidelines for air curtain destructors and burn pits to make the rule approvable.

The TSD has more information about our evaluation.

As authorized in section 110(k)(3) of the CAA, EPA is fully approving the submitted rule because we believe it fulfills all relevant requirements and corrects the deficiencies in the previous version. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same submitted rule. If we receive adverse comments by September 11, 2002, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on October 11, 2002. This will incorporate this rule into the federally enforceable SIP and will terminate all sanctions and sanction clocks associated with our January 4, 2001 action.

PM-10 harms human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control PM-10 emissions. Table 2 lists some of the national milestones leading to the submittal of these local agency PM-10 rules.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

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

The Congressional Review Act, 5 U.S.C. section 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. section 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 11, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

You can view and download this document by going to the web page of the Department's Docket Management System ( http://dms.dot.gov ). On that page, click on “search.” On the next page, type in the last four digits of the docket number that appears in the heading of this document. Then click on “search.” An electronic copy of this document may also be downloaded from the Government Printing Office's Electronic Bulletin Board Service at (202) 512-1661 by using a computer, modem, and suitable communications software. Internet users may also reach the Office of the Federal Register's home page at: http://www.nara.gov/fedreg and the Government Printing Office's web page at: http://www.access.gpo.gov/nara.

Section 5001 of the Transportation Equity Act for the 21st Century (TEA-21), Public Law 105-178, 112 Stat. 107, 419, Authorizations and Appropriations, provides funding for transportation research authorized to be appropriated out of the Highway Trust Fund. Subsection 5001(a) provides for sums that are authorized be appropriated for seven categories of transportation research and subsection 5001(b) provides that these funds shall be available for obligation in the same manner as if such funds were apportioned under chapter 1 of title 23, United States Code. Subsection 5001(b) also states that the Federal share of the cost of the project or activity carried out using these funds shall be 80 percent, unless otherwise expressly provided in title 5 of the TEA-21 or otherwise determined by the Secretary with respect to a project or activity.

In this action, the Secretary delegates to the Federal Highway Administrator the authority to determine a Federal share of the costs, other than 80 percent, for FHWA transportation research projects or activities that are funded under section 5001 of TEA-21. The Federal Highway Administrator is delegated this authority only with respect to the use of section 5001(b) funds for FHWA projects and activities, and exercises no authority with regard to cost share determinations with respect to projects or activities administered by the other U.S. Department of Transportation operating administrations. The reason for the delegation is that the FHWA has the expertise and staff to carry out these programs and make funding decisions according to the statutory requirements. The FHWA's Office of Acquisition Management approves the cooperative agreements to which this cost sharing provision applies. Additionally, the FHWA works with the smaller entities, such as not-for-profit organizations and universities, on a regular basis and is familiar with which organizations have the ability to cost share and which ones do not.

Since this rule relates to Departmental organization, procedure, and practice, notice and comment are unnecessary under 5 U.S.C. 553(b).

Certain programs and activities are to be conducted over the course of a given fiscal year, and this delegation of authority assists the FHWA in ensuring the use of those funds during that year for transportation research. This amendment enhances the FHWA's ability to meet statutory deadlines in order that funds do not lapse. Since the rule expedites the Federal Highway Administration's ability to administer the Highway Research Program, the Secretary finds good cause under 5 U.S.C. 553(d)(3) for the final rule to be effective on the date of publication in the Federal Register .

A total of 51 plant species historically found on Molokai were listed as endangered or threatened species under the Endangered Species Act of 1973, as amended (Act), between 1991 and 1999. Sixteen of these species are endemic to the island of Molokai, while 35 species are reported from one or more other islands, as well as Molokai.

In other published proposals we proposed that critical habitat was prudent for 48 of the 51 species ( Adenophorus periens, Alectryon macrococcus, Bidens wiebkei, Bonamia menziesii, Brighamia rockii, Canavalia molokaiensis, Centaurium sebaeoides, Clermontia oblongifolia ssp. brevipes, Ctenitis squamigera, Cyanea dunbarii, Cyanea grimesiana ssp. grimesiana, Cyanea mannii, Cyanea procera, Cyperus trachysanthos, Diellia erecta, Diplazium molokaiense, Eugenia koolauensis, Flueggea neowawraea, Hedyotis mannii, Hesperomannia arborescens, Hibiscus arnottianus ssp. immaculatus, Hibiscus brackenridgei, Ischaemum byrone, Isodendrion pyrifolium, Labordia triflora, Lysimachia maxima, Mariscus fauriei, Marsilea villosa, Melicope mucronulata, Melicope reflexa, Neraudia sericea, Peucedanum sandwicense, Phyllostegia mannii, Phyllostegia mollis, Plantago princeps, Platanthera holochila, Pteris lidgatei, Schiedea lydgatei, Schiedea nuttallii, Schiedea sarmentosa, Sesbania tomentosa, Silene alexandri, Silene lanceolata, Spermolepis hawaiiensis, Stenogyne bifida, Tetramolopium rockii, Vigna o-wahuensis, and Zanthoxylum hawaiiense ) from the island of Molokai (65 FR 66808, 65 FR 79192, 65 FR 82086, 65 FR 83158, 67 FR 3940, 67 FR 9806, 67 FR 16492). In addition, we proposed that critical habitat was not prudent for Pritchardia munroi because it would likely increase the threats from vandalism or collection of this species on Molokai (65 FR 83158). At the time we listed Labordia triflora and Melicope munroi we determined that the designation of critical habitat was prudent for these two taxa from Molokai (64 FR 48307).

In the April 5, 2002, revised prudency and critical habitat proposal, we proposed critical habitat for 46 of the 51 species from the island of Molokaii (67 FR 16492). Critical habitat was not proposed for 4 of the 51 species ( Bonamia menziesii, Cyperus trachysanthos, Melicope munroi, and Solanum incompletum ) which no longer occur on the island of Molokai and for which we are unable to identify any habitat that is essential to their conservation on the island of Molokai. Critical habitat was not proposed for Pritchardia munroi for the reasons given above.

We have proposed to designate a total of 10 critical habitat units covering approximately 17,614 hectares (ha) (43,532 acres (ac)) on the island of Molokaii.

Critical habitat receives protection from destruction or adverse modification through required consultation under section 7 of the Act (16 U.S.C. 1531 et seq. ) with regard to actions carried out, funded, or authorized by a Federal agency. Section 4(b)(2) of the Act requires that the Secretary shall designate or revise critical habitat based upon the best scientific and commercial data available, and after taking into consideration the economic impact of specifying any particular area as critical habitat. Based upon the previously published proposal to designate critical habitat for plant species from Molokai, and comments received during the previous comment period, we have prepared a draft economic analysis of the proposed critical habitat designations. The draft economic analysis is available on the Internet and from the mailing address in the Public Comments Solicited section below.

We will accept written comments and information during this re-opened comment period. If you wish to comment, you may submit your comments and materials concerning this proposal by any of several methods:

(1) You may submit written comments and information to the Field Supervisor, U.S. Fish and Wildlife Service, Pacific Islands Office, 300 Ala Moana Blvd., PO Box 50088, Honolulu, HI 96850-0001.

(2) You may send comments by electronic mail (e-mail) to: Molokai_Crithab@r1.fws.gov . If you submit comments by e-mail, please submit them as an ASCII file and avoid the use of special characters and any form of encryption. Please also include “Attn: RIN 1018-AH08” and your name and return address in your e-mail message. If you do not receive a confirmation from the system that we have received your e-mail message, contact us directly by calling our Honolulu Fish and Wildlife Office at telephone number 808/541-3441.

(3) You may hand-deliver comments to our Honolulu Fish and Wildlife Office at the address given above.

Comments and materials received, as well as supporting documentation used in preparation of the proposal to designate critical habitat, will be available for inspection, by appointment, during normal business hours at the address under (1) above. Copies of the draft economic analysis are available on the Internet at http://pacificislands.fws.gov or by request from the Field Supervisor at the address and phone number under (1 and 2) above.

The primary author of this notice is John Nuss, U.S. Fish and Wildlife Service, Regional Office, 911 NE 11th Avenue, 4th floor, Portland, OR 97232-4181.

The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq. ).

1. Legislative: Congress made significant changes to the Act with the addition of section 10(j), which provides for the designation of specific reintroduced populations of listed species as “experimental populations.” Previously, we had authority to reintroduce populations into unoccupied portions of a listed species' historical range when doing so would foster the conservation and recovery of the species. However, local citizens often opposed these reintroductions because they were concerned about the placement of restrictions and prohibitions on Federal and private activities. Under section 10(j), the Secretary of the Department of the Interior can designate reintroduced populations established outside the species' current range, but within its historical range, as “experimental.”

Under the Act, species listed as endangered or threatened are afforded protection primarily through the prohibitions of section 9 and the requirements of section 7. Section 9 of the Act prohibits the take of endangered wildlife. “Take” is defined by the Act as harass, harm, pursue, hunt, shoot, wound, trap, capture, or collect, or attempt to engage in any such conduct. Service regulations (50 CFR 17.31) generally extend the prohibition of take to threatened wildlife. Section 7 of the Act outlines the procedures for Federal interagency cooperation to conserve federally listed species and protect designated critical habitats. It mandates all Federal agencies to determine how to use their existing authorities to further the purposes of the Act to aid in recovering listed species. It also states that Federal agencies will, in consultation with the Service, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. Section 7 of the Act does not affect activities undertaken on private land unless they are authorized, funded, or carried out by a Federal agency.

Section 10(j) is designed to increase our flexibility in managing an experimental population by allowing us to treat the population as threatened, regardless of the species' designation elsewhere in its range. Threatened designation gives us more discretion in developing and implementing management programs and special regulations for such a population and allows us to develop any regulations we consider necessary to provide for the conservation of a threatened species. In situations where we have experimental populations, most of the section 9 prohibitions that normally apply to threatened species no longer apply, and the special rule contains the prohibitions and exceptions necessary and appropriate to conserve that species. Regulations for NEPs may be developed to be more compatible with routine human activities in the reintroduction area.

Based on the best available information, we must determine whether experimental populations are “essential” or “nonessential” to the continued existence of the species. An experimental population that is essential to the survival of the species is treated as a threatened species. An experimental population that is nonessential to the survival of the species is also treated as a threatened species. However, for section 7 interagency cooperation purposes, if the NEP is located outside of a National Wildlife Refuge or National Park, it is treated as a species proposed for listing.

For the purposes of section 7 of the Act, in situations where there is an NEP located within a National Wildlife Refuge or National Park (treated as threatened), section 7(a)(1) and the consultation requirements of section 7(a)(2) of the Act would apply. Section 7(a)(1) requires all Federal agencies to use their authorities to conserve listed species. Section 7(a)(2) requires that Federal agencies consult with the Service before authorizing, funding, or carrying out any activity that would likely jeopardize the continued existence of a listed species or adversely modify its critical habitat. When NEPs are located outside a National Wildlife Refuge or National Park, only two provisions of section 7 apply—section 7(a)(1) and section 7(a)(4). In these instances, NEPs provide additional flexibility because Federal agencies are not required to consult with us under section 7(a)(2). Section 7(a)(4) requires Federal agencies to confer with the Service on actions that are likely to jeopardize the continued existence of a proposed species. However, since we determined that the experimental population is not essential to the continued existence of the species, it is very unlikely that we would ever determine jeopardy for a project impacting a species within an NEP outside a National Wildlife Refuge or National Park.

Individuals used to establish an experimental population may come from a donor population, provided their removal will not create adverse impacts upon the parent population and provided appropriate permits are issued in accordance with our regulations (50 CFR 17.22) prior to their removal.

2. Biological: Since the mid-1980s, Conservation Fisheries, Inc. (CFI), with support from us, the Tennessee Wildlife Resources Agency (TWRA), U.S. Forest Service (USFS), National Park Service (NPS), Tennessee Valley Authority (TVA), and Tennessee Aquarium (TA), has reintroduced the smoky madtom, duskytail darter, yellowfin madtom, and spotfin chub into Abrams Creek, within the Great Smoky Mountains National Park, Blount County, Tennessee. We have evidence that all four species are becoming reestablished in Abrams Creek (Rakes et al. 1998). Based on this success and CFI's intimate knowledge of the fishes' habitat needs, we contracted them to survey the Tellico River to determine if we could expand the recovery program for these fishes into the Tellico River.

CFI determined that the Tellico River appears to contain ideal habitat for the reintroduction of the four fishes, between the backwaters of the Tellico Reservoir (approximately TRM 19 (30.4 km)) and TRM 33 (52.8 km), near the Tellico Ranger Station, Monroe County, Tennessee (Rakes and Shute 1998). CFI concluded that the Tellico River's overall water quality and clarity, combined with substrate quality, were somewhat less optimal than Citico Creek, where three of the four species currently exist. However, they also concluded that the Tellico River contains as good or better habitat than that which exists in Abrams Creek, where reintroductions of all four species are apparently succeeding.

Rakes and Shute (1998) reported that there are no confirmed historical collection records for these fishes from the Tellico River. However, they believe that all four species probably occurred in the river historically. They based their conclusion on two facts: (1) That the Tellico River is a Little Tennessee tributary just downstream from the mouths of Abrams and Citico Creeks (all four fishes historically occurred in these creeks) and (2) that all three streams drain the same physiographic provinces (Blue Ridge and Ridge and Valley). Additionally, all four species historically had access to the Tellico River. Prior to the construction of reservoirs on the main stem of the Little Tennessee River, no physical barriers prevented the movement of these fishes among Abrams Creek, Citico Creek, and the Tellico River (Peggy Shute, TVA, personal communication, 1998).

3. Recovery Efforts: We listed the duskytail darter ( Etheostoma percnurum ) (Jenkins 1994) as an endangered species on April 27, 1993 (58 FR 25758), and completed the recovery plan for this species in March 1994 (Service 1994). Although likely once more widespread in the upper Tennessee and middle Cumberland River systems, the species was historically known from only six populations—Little River and Abrams Creek, Blount County, Tennessee; Citico Creek, Monroe County, Tennessee; Big South Fork Cumberland River, Scott County, Tennessee, and McCreary County, Kentucky; Copper Creek and the Clinch River (this is one population), Scott County, Virginia; and the South Fork Holston River, Sullivan County, Virginia (Service 1994). The South Fork Holston River population is apparently extirpated. The Little River, Copper Creek/Clinch River, and Big South Fork Cumberland River populations are extant but small. CFI has reintroduced the duskytail darter into Abrams Creek, where a population is apparently becoming reestablished (Rakes et al. 1998).

The downlisting (reclassification from endangered to threatened status) criteria in the Duskytail Darter Recovery Plan are: (1) Protect and enhance existing populations and reestablish a population so that at least three distinct viable duskytail darter populations exist, (2) complete studies of the species' biological and ecological requirements, (3) develop management strategies from these studies that are or are likely to be successful, and (4) ensure that no foreseeable threats exist that would likely threaten the continued existence of the three aforementioned viable populations. The delisting criteria in the recovery plan are: (1) Protect and enhance existing populations and reestablish populations so that at least five distinct viable duskytail darter populations exist, (2) complete studies of the species' biological and ecological requirements, (3) develop management strategies from these studies that are or are likely to be successful, and (4) ensure that no foreseeable threats exist that would likely threaten the continued existence of the five aforementioned viable populations.

We listed the smoky madtom ( Noturus baileyi ) (Taylor 1969) as an endangered species on October 26, 1984 (49 FR 43065), and finalized the recovery plan for this species in August 1985 (Service 1985). Although once probably more widespread in tributaries to the lower Little Tennessee River system, this species was historically collected from only two creeks—Abrams Creek, Blount County, Tennessee, and Citico Creek, Monroe County, Tennessee (Service 1985). The Citico Creek population is still extant. CFI has reintroduced the smoky madtom into Abrams Creek, and a population is apparently becoming reestablished (Rakes et al. 1998).

The downlisting criteria in the Smoky Madtom Recovery Plan are: (1) Protect the existing Citico Creek population and reintroduce the species into Abrams Creek so that at least two distinct viable smoky madtom populations exist, and (2) eliminate threats to the species by implementing management activities. The delisting criteria in the recovery plan are: (1) Protect and enhance existing populations and reestablish populations so that at least four distinct viable smoky madtom populations (Abrams and Citico Creeks, plus two others) exist; (2) implement successful management plans for the populations in Abrams and Citico Creeks; and (3) protect all four populations and their habitat from present and foreseeable threats that could interfere with the survival of any of the populations.

We listed the yellowfin madtom ( Noturus flavipinnis ) (Taylor 1969) as a threatened species on September 9, 1977 (42 FR 45527), and finalized the recovery plan for this species in June 1983 (Service 1983a). This fish was probably once widely distributed in the Tennessee drainage, from the Chickamauga system upstream (Service 1983a). However, the yellowfin madtom was historically known from only six streams—South Chickamauga Creek, Catoosa County, Georgia; Hines Creek, a Clinch River tributary, Anderson County, Tennessee; North Fork Holston River, Smyth County, Virginia; Copper Creek, Scott and Russell Counties, Virginia; Powell River, Hancock County, Tennessee; and Citico Creek, Monroe County, Tennessee (Service 1983a). Although there are no historical yellowfin madtom records from Abrams Creek, Blount County, Tennessee, Lennon and Parker (1959) reported that the brindled madtom (the name given by early collectors for the yellowfin) was collected during a reclamation project of lower Abrams Creek in 1957. Based on this observation, Dinkins and Shute (1996) and others believe the species once occurred in the middle and lower reaches of Abrams Creek. Three small populations still persist—Citico Creek, Copper Creek, and the Powell River. CFI has reintroduced the species into Abrams Creek, and a population is apparently becoming reestablished (Rakes et al. 1998).

The delisting criteria in the Yellowfin Madtom Recovery Plan are: (1) Protect and enhance existing populations and/or reestablish populations so that viable populations exist in Copper Creek, Citico Creek, and the Powell River; (2) recreate and/or discover two additional viable populations; (3) ensure that noticeable improvements in coal-related problems and substrate quality exist in the Powell River; and (4) protect the species and its habitat in all five rivers from present and foreseeable threats that may adversely affect essential habitat or the survival of any of the populations.

We listed the spotfin chub (=turquoise shiner) ( Cyprinella ( =Hybopsis ) monacha ) (Cope 1868) as a threatened species on September 9, 1977 (42 FR 45527), and finalized the recovery plan for this species in November 1983 (Service 1983b). This once widespread species was historically known from 24 streams in the upper and middle Tennessee River system. It is now extant in only four rivers/river systems—the Buffalo River at the mouth of Grinders Creek, Lewis County, Tennessee; Little Tennessee River, Swain and Macon Counties, North Carolina; Emory River system (Obed River, Clear Creek, and Daddys Creek) Cumberland and Morgan Counties, Tennessee; Holston River and its tributary, the North Fork Holston River, Hawkins and Sullivan Counties, Tennessee, and Scott and Washington Counties, Virginia (Service 1983b; P. Shute, TVA, personal communication, 1998). CFI has reintroduced the species into Abrams Creek, and indications are that it may become reestablished (Rakes et al. 1998).

The delisting criteria in the Spotfin Chub Recovery Plan are: (1) protect and enhance existing populations and/or reestablish populations so that viable populations exist in the Buffalo River system, upper Little Tennessee River, Emory River system, and lower North Fork Holston River and (2) ensure, through reintroductions and/or the discovery of new populations, that two other viable populations exist.

The recovery criteria for all four of these fishes generally agree that, to reach recovery, we must: (1) Restore existing populations to viable levels, (2) reestablish viable populations in historical habitats, and (3) eliminate foreseeable threats that would likely threaten the continued existence of any viable populations. The number of secure, viable populations (existing and restored) needed to achieve recovery varies by species and depends on the extent of the species' probable historical range ( i.e., species that were once widespread require a greater number of populations for recovery than species that were historically more restricted in distribution). However, the reestablishment of historical populations is a critical component to the recovery of all four species.

4. Reintroduction Site: In March 1998, the Executive Director of the TWRA stated that he supports the conclusions of Rakes and Shute (1998) and requested that we consider designating the Tellico River an NEP area for reintroducing the four fishes. He further stated that: (1) The Tellico River was the probable historical habitat of the duskytail darter, smoky madtom, yellowfin madtom, and spotfin chub, and (2) the Tellico River appeared to have almost ideal habitat for the reintroduction of all four fishes.

Dr. David Etnier, Department of Ecology and Evolutionary Biology, University of Tennessee, Knoxville, Tennessee, stated in April 1998 that he supports the reintroduction of the four species into the Tellico River. Dr. Etnier presented several reasons for his support: (1) The mouth of the Tellico River is approximately 10 miles (16 km) downstream of the mouth of Citico Creek, which historically supported all four species and currently supports all but the spotfin chub; (2) CFI's habitat analysis indicated that the reintroduction of these fishes into the Tellico River has a greater potential for success than reintroductions into any other tributary of the Little Tennessee River system, except Abrams Creek, where apparently successful reintroductions are already occurring; (3) apparently, no fish collections were made from the Tellico River prior to the 1960s, so the extirpation of these fishes could have occurred prior to the 1960s due to siltation caused by heavy logging in the watershed around the turn of the century; and (4) none of these species display any biological attributes that suggest they could become a problem if successfully established into the Tellico River.

We will reintroduce populations of the duskytail darter, smoky madtom, yellowfin madtom, and spotfin chub (=turquoise shiner) into the Tellico River, between the backwaters of the Tellico Reservoir (approximately TRM 19 (30.4 km)) and TRM 33 (52.8 km), near the Tellico Ranger Station, Monroe County, Tennessee, and designate these populations as NEPs. This area is identified as the NEP area.

5. Reintroduction Procedures: At this time we cannot determine the dates for these reintroductions, the specific sites where the fish species will be released, and the actual number of individuals to be released. We will release primarily artificially propagated juveniles, but we could release some wild adult stock. Propagation and juvenile rearing technology is available for the spotfin chub and the duskytail darter. Limited numbers of smoky and yellowfin madtom juveniles can be reared using eggs and larvae taken from the wild. However, madtom artificial propagation technology, which is needed to produce large numbers of juvenile madtoms, is still in development.

The parents of the juveniles reintroduced into the NEP area will come from existing wild populations. The two madtoms and duskytail darters will come from a nearby Little Tennessee River tributary—Citico Creek, Monroe County, Tennessee. The spotfin chubs will come from upstream in the Little Tennessee River, Swain County, North Carolina. In some cases, the parents will be returned to the wild population from which they were taken. However, in most cases the parents will be permanently relocated to propagation facilities.

The status of the extant populations of the duskytail darter, smoky madtom, yellowfin madtom, and spotfin chub is such that individuals can be removed to provide a donor source for reintroduction without appreciably reducing the likelihood of the species' survival in the wild. Therefore, we have determined that these reintroduced fish populations are not essential to the continued existence of the species. We will ensure, through our section 10 permitting authority and the section 7 consultation process, that the use of animals from any donor population for these reintroductions is not likely to jeopardize the continued existence of the species.

In addition, the anticipated success of these reintroductions will enhance the conservation and recovery potential of these species by extending their present ranges into currently unoccupied historic habitat. These species are not known to exist in the Tellico River or its tributaries at the present time.

Sites for the reintroduction of these four fish species into the Tellico River, Monroe County, Tennessee, will be within the designated NEP area. This area is totally isolated from existing populations of these species by large reservoirs, and none of these fishes are known to occur or move through large reservoir habitat. Therefore, these reservoirs will act as barriers to the downstream expansion of these species into the main stem of the Little Tennessee River and its tributaries and ensure that these populations will remain geographically isolated.

We do not believe these reintroductions will conflict with existing or proposed human activities or hinder public utilization of the NEP area. Special rules for experimental populations contain all the prohibitions and exceptions regarding the taking of individual animals. These special rules are more compatible with routine human activities in the reintroduction area.

Based on the habitat requirements of these four fishes, we do not expect them to become established outside the NEP area. However, if any of the four species move upstream or downstream or into tributaries outside the designated NEP area, we would presume that the animals had come from the reintroduced populations. The rule would then be amended, and the boundaries of the NEP area would be enlarged to include the entire range of the expanded population.

On June 26, 1998, we mailed letters to 67 potentially affected congressional offices, Federal and State agencies, local government offices, and interested parties that we were considering proposing NEP status for four fish species in the Tellico River. We received four written responses.

The USFS, which is significantly involved in reintroduction efforts for these fishes into Abrams Creek, supported the proposed reintroductions into the Tellico River as NEPs and offered to cooperate with us and TWRA in the reintroductions.

The Tennessee Department of Environment and Conservation, Division of Natural Heritage (TDEC), supported the proposed reintroduction of the four fishes into the Tellico River. They believed that designating the reintroduced populations as NEPs is appropriate because it should enable Federal, State, and local authorities to continue to promote the conservation and recovery of these fishes.

The Tennessee Chapter of the American Fisheries Society supported the proposed reintroduction of these fishes into the Tellico River under NEP status. They concluded that: (1) Although there is little information on the historical environmental conditions in the Tellico River, the river now supports a relatively healthy native fish community with respect to species diversity, species composition, fish abundance, and fish health; (2) the river appears to contain suitable habitat for the survival of all four species; (3) all four species probably historically occupied the river; and (4) designating reintroductions as NEPs greatly relaxes regulatory requirements and makes introduced populations more compatible with other resource use in the watershed.

The Southeast Aquatic Research Institute (SARI) fully supported the proposed reintroductions.

On June 8, 2001, we published the proposed rule in the Federal Register (66 FR 30853) to designate NEP status, under section 10(j) of the Act, for the reintroduction of the aforementioned four fishes into the Tellico River, Monroe County, Tennessee. Additionally, we announced this proposal in facsimiles dated June 7, 2001; in letters dated June 8, 2001; and in a legal notice published in the Knoxville News-Sentinel , Knoxville, Tennessee, on June 21, 2001. Those documents notified affected congressional offices, the Governor of Tennessee, Federal and State agencies, local government offices, scientific organizations, and interested parties of the proposed action and requested comments and information that might contribute to the development of a final determination.

In the June 8, 2001, proposed rule (66 FR 30853), we opened a 60-day comment period. We received eight responses—five supported the designation as an NEP, one supported the reintroduction but requested the experimental population be designated “essential” rather than “nonessential,” and two respondents expressed concern that the designation would adversely impact recreational activities in the Tellico River watershed. These comments did not result in any changes to the final rule. Key issues raised and our responses are presented below.

Issue 1: Two respondents expressed concern that the NEP designation would adversely impact recreational activities in the Tellico River watershed. They were especially concerned with the impact to off-road-vehicle use in the Cherokee National Forest portion of the watershed.

Response: Because of the regulatory flexibility provided through an NEP designation, we do not believe the reintroduction of these fishes will have any adverse impact on recreational or other legal activities in the Tellico River watershed (see “Required Determinations” and “Management” sections). Federal agencies, like the USFS, are not required under the Act to change any recreational uses in the Cherokee National Forest to protect the continued existence of these fishes in the Tellico River watershed. State and local agencies, communities, and private citizens would not be required to change current uses in the watershed to protect the fishes in this NEP.

Issue 2: One respondent stated that we should classify the experimental populations as “essential” instead of “nonessential.”

Response: In our August 27, 1984, final rule regarding experimental populations (49 FR 33885), we stated that, in some situations, the status of the extant population is such that individuals can be removed to provide a donor source for reintroduction without creating adverse impacts on the parent population. This is especially true if captive propagation efforts are providing individuals for release into the wild. Further, we cannot ignore Congressional intent in explaining the “essential” determination:

“* * * The Secretary shall consider whether the loss of the experimental population would be likely to appreciably reduce the likelihood of survival of that species in the wild. If the Secretary determines that it would, the population will be considered essential to the continued existence of the species. The level of reduction necessary to constitute “essentiality” is expected to vary among listed species, and in most cases, experimental populations will not be essential .”

The status of the extant populations of the duskytail darter, smoky madtom, yellowfin madtom, and spotfin chub is such that individuals can be removed to provide a donor source for reintroduction without appreciably reducing the likelihood of the species' survival in the wild. Therefore, we have determined that these reintroduced fish populations are not essential to the continued existence of the species. We will ensure, through our section 10 permitting authority and the section 7 consultation process, that the use of animals from any donor population for these reintroductions is not likely to jeopardize the continued existence of the species.

Issue 3: Four respondents (TVA, TWRA, TDEC, and SARI) expressed support for the designation of the experimental population as “nonessential” because it provides greater management flexibility.

Response: We agree that an NEP designation provides more management flexibility than an essential experimental population designation. We also believe that the NEP designation is appropriate for the reasons discussed in our response to Issue 2 above.

In conformance with our policy on peer review, published on July 1, 1994 (59 FR 34270), we provided copies of the proposed rule to ten specialists in order to solicit comments on the scientific data and assumptions relating to the supportive biological and ecological information for this NEP rule. The purpose of such review is to ensure that the NEP designation decision is based on the best scientific information available, as well as to ensure that reviews by appropriate experts and specialists are included into the review process of rulemakings. Although comments were solicited from ten specialists, none of these reviewers provided comments on the proposed rule. However, we did receive comments expressing support for the designation from the State (e.g., TWRA, TDEC), Tennessee Chapter of the American Fisheries Society, and SARI, and we are working closely with TWRA, USFS, NPS, TVA, and the TA on our reintroduction efforts, as mentioned above.

This rule is not a significant rule as determined by the Office of Management and Budget (OMB) under Executive Order 12866. This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The area affected by this rule consists of a very limited and discrete geographic segment (only 14 river miles [22.4 km]) of the Tellico River in Monroe County, Tennessee. No significant impacts to existing human activities are expected as a result of this rule.

This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. Designating reintroduced populations of federally listed species as NEPs significantly reduces the Act's regulatory requirements regarding the reintroduced listed species. Because of the substantial regulatory relief, we do not believe the reintroduction of these fishes will conflict with existing or proposed human activities or hinder public use of the Tellico River.

This rule does not alter the budgetary effects of entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. No entitlements, grants, user fees, or loan programs are associated with this rule.

This rule does not raise novel legal or policy issues. We have previously promulgated section 10(j) rules for experimental populations of other listed threatened or endangered species in various localities since 1984. The rules are designed to reduce the regulatory burden that would otherwise exist when reintroducing listed species to the wild.

The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Although most, if not all, of the identified businesses engaged in activities along the affected stream reaches are small businesses, this rule will have no economic effect in that it will operate to reduce or remove regulatory restrictions (see above for discussion of expected impacts).

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule does not have an annual effect on the economy of $100 million or more on local or State governments or private entities. This rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. This rule does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. The intent of this special rule is to facilitate and continue the existing commercial activities along the affected stream reaches, while providing for the conservation of species through reintroduction into suitable habitat.

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector. The TWRA, which manages the fishes in the Tellico River, requested that we consider this reintroduction under an NEP designation. However, this rule will not require the TWRA to specifically manage for any of these reintroduced species. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ) is not required.

In accordance with Executive Order 12630, this rule does not have significant takings implications. When reintroduced populations of federally listed species are designated as NEPs, the Act's regulatory requirements regarding the reintroduced listed species within the NEP are significantly reduced. Section 10(j) of the Act can provide regulatory relief with regard to the taking of reintroduced species within an NEP area. For example, this rule allows for the taking of these reintroduced fishes when such take is incidental to an otherwise legal activity, such as recreation ( e.g., fishing, boating, wading, trapping, swimming), forestry, agriculture, and other activities that are in accordance with Federal, State, and local laws and regulations. Because of the substantial regulatory relief provided by NEP designations, we do not believe the reintroduction of these fishes will conflict with existing or proposed human activities or hinder public use of the Tellico River system. A takings implication assessment is not required.

In accordance with Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. This rule will not have substantial direct effects on the States, in the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have coordinated extensively with the State of Tennessee regarding the reintroduction of these fishes into the Tellico River. We are undertaking this rulemaking at the request of the State wildlife agency (TWRA) in order to assist the State in restoring and recovering its native aquatic fauna. Achieving the recovery goals for these four fish species will contribute to the eventual delisting of these species and, thus, the return of these species to State management. We do not expect any intrusion on State policy or administration; the roles or responsibilities of Federal or State governments will not change; and fiscal capacity will not be substantially directly affected. This special rule operates to maintain the existing relationship between the States and the Federal Government and is being undertaken at the request of a State agency. We have endeavored to cooperate with the TWRA in the preparation of this final rule.

In accordance with Executive Order 12988, the Department of the Interior has determined that this rule does not unduly burden the judicial system and meets the applicable standards provided in sections (3)(a) and (3)(b)(2) of the order.

This rule does not require an information collection from ten or more parties, and a submission under the Paperwork Reduction Act is not required. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB Control Number.

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act (NEPA) is not required. We have determined that the issuance of a final rule for these NEPs is categorically excluded under our NEPA procedures (516 DM 6, Appendix 1.4 B (6)).

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, we have evaluated possible effects on federally recognized Indian tribes and have determined that there are no effects.

On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Because this final rule is not a significant regulatory action under Executive Order 12866, it is not expected to significantly affect energy supplies, distribution, and use. Therefore, this action is a not a significant energy action and no Statement of Energy Effects is required.

The principal author of this final rule is Richard G. Biggins. Please contact Bob Butler (see ADDRESSES section) for further information.