Public Law 100-656, enacted on November 15, 1988, incorporated into the Small Business Act the previously existing regulation that recipients of Federal contracts set aside for small businesses or SBA 8(a) Program procurement must provide the product of a small business manufacturer or processor, if the recipient is other than the actual manufacturer or processor. This requirement is commonly referred to as the Nonmanufacturer Rule. The SBA regulations imposing this requirement are found at 13 CFR 121.906(b) and 121.1106(b). Section 303(h) of the law provides for waiver of this requirement by SBA for any “class of products” for which there are no small business manufacturers or processors in the Federal market. To be considered available to participate in the Federal market on these classes of products, a small business manufacturer must have submitted a proposal for a contract solicitation or received a contract from the Federal government within the last 24 months. The SBA defines “class of products” based on a six digit North American Industry Classification System (NAICS) and the four digit Product and Service Code established by the Federal Procurement Data System.

The FAA published this direct final rule with a request for comments in the Federal Register on August 21, 2003 (68 FR 50464). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule adjusted the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on December 25, 2003. No adverse comments were received, and thus this notice confirms that this direct final rule will be come effective on that date.

The FAA published this direct final rule with a request for comments in the Federal Register on August 21, 2003 (68 FR 50466). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on December 25, 2003. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

The FAA published this direct final rule with a request for comments in the Federal Register on August 21, 2003 (68 FR 50465). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on December 25, 2003. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

The Automated Export Systems (AES) is the electronic equivalent of filing with the U.S. Bureau of Customs and Border Protection a paper Form No. 7525V, Shipper's Export Declaration (SED). This electronic filing of export information is mandatory for export of USML articles, unless a written exception is granted by the Department of State. Implementation of the electronic filing of the export information using the AES system for shipments of USML articles is mandatory on October 18, 2003. To ensure a seamless transition from paper to electronic reporting, the exporter, or an agent acting on the exporter's behalf, shall, until December 18, 2003, also file with the Bureau of Customs and Border Protection a paper copy of the AES document.

However, there are circumstances ( e.g. , oral, visual, or electronic transmissions of technical data and defense services) when exports subject to the controls of the ITAR are made and the transfer is not monitored by the Bureau of Customs and Border Protection. The Department has determined that all technical data and defense services export information shall be provided directly to Directorate of Defense Trade Controls (DDTC), regardless of the type of ITAR authorization ( e.g. , license, agreement, or exemption). A copy of the notification to DDTC shall be provided by the exporter, or an agent acting on the exporter's behalf, to the Bureau of Customs and Border Protection upon request for those shipments that are exported using a U.S. Port ( e.g. , hand carried exports of technical data). DDTC is finalizing the system for direct electronic reporting of export data to DDTC. Such electronic reporting will be mandatory on January 18, 2004 for reporting exports against DSP-5 technical data licenses, Manufacturing License Agreements, and Technical Assistance Agreements. While AES becomes mandatory on October 18, 2003, the electronic reporting for licenses and agreements to DDTC is being delayed in order to ensure that AES is fully operational prior to implementation of the DDTC direct reporting requirement. Mandatory reporting on all exemptions is being further delayed, and will be implemented in a future Federal Register Notice amending Section 122.23. DDTC anticipates reporting will include the applicant's registration code, the USML category of the technical data or defense service, license and/or exemption number, and country of ultimate and, if applicable, intermediate destination. In the interim period, reporting of the export of technical data under a Form DSP-5 and defense services under an MLA/TAA will be as follows:

1. For reporting exports of technical data that are licensed on a Form DSP-5, the applicant must self validate the initial export on the original of the DSP-5 and return the license to DDTC. Exports of additional copies of the licensed technical data ( i.e. , the transaction must be identical, to include the same technical data to the identical end use and end users) would be the subject of the exemption in Section 125.4.

2. The initial export of technical data and defense services using an agreement or a license shall be reported by letter to DDTC with the ATTN Line reading “Initial Export Notification for Agreement (or License) [insert agreement/license number].”

Should an instance arise when the technical data authorized by a license or agreement is to be exported using a U.S. Port, the exporter shall file the export information in accordance with Section 123.22(b)(3)(iii) of this subchapter.

Although DDTC is delaying mandating reporting of all exports using an exemption, effective January 18, 2004 all paper filing of export information for USML shipments shall cease. Also, effective on the date of this publication, use of the Department of State's Direct Shipment Validation Program and the Department of Commerce, Bureau of the Census Option 4 SED filing alternative will be discontinued for all shipments of USML articles.

The Proliferation Prevention Enhancement Act of 1999, Public Law 106-113, Appendix G, and Section 38(i) of the Arms Export Control Act (AECA) mandate reporting from U.S. exporters of export shipment data. In particular, the law requires the Department of State to collect electronically all Shipper's Export Declaration (SED) data on exports of USML articles. The Department of Homeland Security, Bureau of Customs and Border Protection and the Department of Commerce, Bureau of Census have implemented a process for the electronic filing of the Form 7525V, Shipper's Export Declaration (SED), using a system known as the Automated Export System (AES). The AES shall serve as the Department of State's primary collection of data on exports of defense articles. To provide the required information, the AES has been enhanced to add additional information requirements, to include (a) DDTC registration number of the authorized exporter; (b) identification of Significant Military Equipment (SME) as defined in section 120.7 of the ITAR; (c) a certification that all parties in the transaction are eligible in accordance with the ITAR ( i.e. , section 120.1, paragraphs (c) and (d); (d) identification of the USML Category (section 121.1 of the ITAR) of the item being shipped; (e) additional fields to report the DDTC quantity and unit of measure as described on the license or exemption; and (f) a field for identification of the ITAR exemption authorizing the export. Further changes to the AES are being considered, such as identification of the article being exported against the line item of the article authorized on the export license.

Also, the AES requires the use of external and internal transaction numbers to track the transaction. The External Transaction Number (XTN) is generated at the time of the AES filing by the DDTC registered applicant/exporter, or an agent acting on the filer's behalf. The Internal Transaction Number (ITN) is generated by the AES and returned to the filer electronically once the submitted information has been verified for accuracy and completeness and accepted by the AES. When an AES submission is rejected by the Bureau of Customs and Border Protection ( e.g. , Customs is unable to validate the XTN in its system or the exporter does not receive an ITN), it will be considered as not having met the regulatory requirements of the ITAR and export may not be made. Future changes to the regulations may be required to expand the use of the ITN in the AES in order to make obvious that the SED was correctly filed through the AES, to include a requirement for the ITN on the bill of lading, air waybill, or other loading documents. Any additional AES requirements affecting export of USML articles will be the subject of a Department of State Federal Register Notice.

A new definition has been added to Part 120 of the ITAR. A new § 120.30 now defines the AES as the electronic filing of the export information. Part 120 is also amended in § 120.28, paragraph (b) to reflect the new name of the Department of Commerce component formerly known as the Bureau of Export Administration. The Bureau is now known as the Bureau of Industry and Security (BIS). Also, while not the subject of an amendment in this publication, exporters are advised that any reference in the ITAR that currently reads “U.S. Customs”, refers to the activities of the Bureau of Customs and Border Protection and the Bureau of Immigration and Customs Enforcement, both of which are now part of the Department of Homeland Security.

In addition, Part 123 is amended in § 123.4 to clarify the procedure for electronic filing of export information and the accompanying documentation. Also, in Part 123, the title of § 123.22 is amended to better reflect the requirements and now reads, “Filing, retention, and return of export licenses and filing of export information.” Section 123.22 also has been reformatted to address the specific requirements of the new procedures, to include in paragraph (a) filing and retention of licenses authorized by the DDTC; paragraph (b) filing and reporting of export information; and, paragraph (c) return of licenses.

From time-to-time, exports are required of licensed hardware when the applicant is unable to provide the export information in the mandated timelines. Section 123.22, paragraph (b)(2) provides that the Bureau of Customs and Border Protection may permit the license holder, or an agent acting on the filer's behalf, to electronically file urgent shipments in a shorter time period, provided certain conditions are met.

While all exports of hardware, regardless of the type of approval ( e.g. , license, agreement, or exemption) controlled by the ITAR will require filing of the export information using AES, exports of technical data and defense services made using a license, agreement or exemption shall be electronically reported directly to DDTC. Section 123.22 has been amended accordingly. Reporting to DDTC of the export data electronically for licensed technical data (DSP-5) and defense services (MLA and TAA) will be mandatory January 18, 2004 to require initial reporting and reporting in any instance where the exporter is using a U.S. port. This delay, and the further delay related to reporting exports using exemptions, should permit sufficient time for implementation of the AES. Guidelines for use of the DDTC export data system will be published on the DDTC Web site ( http://www.pmdtc.org ).

Section 123.24 is also amended to require, for shipments of U.S. Munitions List hardware by the U.S. Postal Service, the electronic filing of export information using the AES and the filing of the license with the Bureau of Customs and Border Protection at a U.S. Port. Shipments of technical data in furtherance of a license or agreement by mail shall be reported directly to DDTC.

Section 124.3(a) has been amended to eliminate the requirement that the U.S. party to a manufacturing license or technical agreement certify on an SED that the export of unclassified technical data being exported does not exceed the scope of the agreement and any limitations imposed pursuant to this part. This requirement is no longer needed because unclassified technical data exports will no longer be reported using an SED.

Section 125.6 is amended to change the requirement that an exporter, claiming an exemption for the export of technical data under the provisions of sections 125.4 and 125.5, certify on the SED that the proposed export is covered by one of those sections. Section 125.6 will now require that this certification be made by marking the package or letter containing the technical data. The exporter must retain this certification for a period of 5 years. For exports of technical data that are oral, visual or electronic, the certification must still be completed and retained for 5 years.

Finally, section 125.8 is being removed and reserved for future use.

Regulatory Analysis and Notices: This amendment involves a foreign affairs function of the United States and, therefore, is not subject to the procedures required by 5 U.S.C. 553 and 554. It is exempt from review under Executive Order 12866 but has been reviewed internally by the Department to ensure consistency with the purposes thereof. This rule does not require analysis under the Regulatory Flexibility Act or the Unfunded Mandates Reform Act. It is not a major rule within the meaning of the Small Business Regulatory Enforcement Act of 1966. It will not have substantial direct effect on the States, 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 rule does not have sufficient federalism implications to warrant application of the consultation provisions of Executive Orders 12372 and 13123. The reporting or record-keeping actions required from the public under the rule require the approval of the Office of Management and Budget (OMB) under the Paperwork Reduction Act. OMB has approved all such actions required under this rule, which are done under four information collections; the Department of State is responsible for three (OMB control numbers 1405-0003, 1405-0093, and 1405-0148), and the Department of Commerce is responsible for one (OMB control number 0607-0152).

On July 9, 2003 (68 FR 40861), EPA published a notice of proposed rulemaking (NPR) for the State of Maryland. The NPR proposed approval of revised mobile emission inventories and 2005 motor vehicle emissions budgets which have been developed using MOBILE6, an updated model for calculating mobile emissions of ozone precursors. These inventories and associated motor vehicle emissions budgets are part of the one-hour ozone attainment plans approved for the Metropolitan Baltimore nonattainment area (the Baltimore area) and the Cecil County portion of the Philadelphia-Wilmington-Trenton nonattainment area (the Philadelphia area). The intended effect of this action is to approve SIP revisions that will better enable the State of Maryland to continue to plan for attainment of the one-hour national ambient air quality standard (NAAQS) for ozone in the Baltimore area and the Cecil County portion of the Philadelphia area. This action is being taken under the Clean Air Act.

These SIP revisions were proposed under a procedure called parallel processing, whereby EPA proposes a rulemaking action concurrently with a state's procedures for amending its SIP. The state's proposed SIP revisions were submitted to EPA on May 28, 2003 by the Maryland Department of the Environment (MDE). On July 9, 2003 (68 FR 40861), EPA proposed approval of Maryland's May 28, 2003 submittal. No comments were received during the public comment period on EPA's July 9, 2004 proposal. The MDE formally submitted the final SIP revision on September 2, 2003. That final submittal had no substantial changes from the proposed version submitted on May 28, 2003. A detailed description of Maryland's submittal and EPA's rationale for its proposed approval were presented in the July 9, 2003 notice of proposed rulemaking and will not be restated in its entirety here.

Maryland's September 2, 2003 SIP revisions contain revised 1990 and 2005 motor vehicle inventories and emissions budgets calculated using the MOBILE6 motor vehicle emissions model. Consistent with EPA's “Policy Guidance on the Use of MOBILE6 for SIP Development and Transportation Conformity” and “Clarification of Policy Guidance for MOBILE6 in Mid-course Review Areas”, regarding the use of MOBILE6 in SIP development, the MDE’s submittal included relative reduction comparisons to show that the one-hour ozone attainment demonstration plans for both the Baltimore and Philadelphia areas continue to demonstrate attainment using revised MOBILE6 mobile vehicle emissions. The MDE's methodology for the relative reduction comparison consisted of comparing the new MOBILE6 vehicle emissions with those previously approved using MOBILE5 for the Baltimore and the Philadelphia areas' attainment plans (see October 30, 2001,66 FR 54687) to determine if attainment will still be predicted by the established attainment dates. Specifically, the State calculated the relative reductions (expressed as percent reductions) in ozone precursors between the 1990 base year and attainment year inventories, both MOBILE5 based. These percent reductions were then compared to the percent reductions between the revised MOBILE6-based 1990 base year and attainment year inventories. These relative reduction comparisons show that the one-hour ozone attainment demonstration plans for both the Baltimore area and the Philadelphia area continue to demonstrate attainment using revised MOBILE6 mobile vehicle emissions.

EPA is taking final action to approve Maryland's September 2, 2003 SIP revisions. These revisions amend the1990 and 2005 motor vehicle emissions inventories and 2005 motor vehicle emissions budgets of the attainment demonstration plans for the Baltimore area and the Cecil County portion of the Philadelphia area using MOBILE6. In accordance with the parallel processing procedures, EPA has evaluated Maryland's final SIP revisions submitted on September 2, 2003 and finds that no substantial changes were made from the proposed SIP revisions submitted on May 28, 2003. Maryland has demonstrated that the revised one-hour attainment demonstration plans for the Baltimore and the Philadelphia areas continue to demonstrate attainment with the revised MOBILE6-based inventories and budgets. The revised mobile inventories and emissions budgets being approved for the two nonattainment areas are shown below in Tables 1 and 2 respectively.

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 Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 26, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action to approve SIP revisions to the one-hour ozone attainment demonstration plans for the Baltimore area and the Cecil County portion of the Philadelphia area which revise the 1990 and 2005 motor vehicle emissions inventories and 2005 motor vehicle emissions budgets using MOBILE6 may not be challenged later in proceedings to enforce their requirements. (See section 307(b)(2).)

Under the authority of the federal Clean Air Act (Clean Air Act or the Act) EPA is finalizing certain actions related to the PM 10 designation and classification of the Ada County/Boise, Idaho area. 1 First, EPA is rescinding the March 12, 1999 finding (64 FR 12257) that the PM 10 standards promulgated on July 1, 1987 (52 FR 24634) and the accompanying designation and classification for PM 10 no longer apply in the Ada County/Boise, Idaho area. The intended effect of this action is to restore the applicability of the current PM 10 standards in the Ada County/Boise, Idaho area as well as the nonattainment designation and moderate classification associated with those standards. Simultaneously, EPA is taking final action to approve the PM 10 maintenance plan for the Ada County/Boise, Idaho area as a State Implementation Plan (SIP) revision and to redesignate the area to “attainment” for PM 10 .

The action to redesignate Ada County/Boise, Idaho to attainment is based on valid monitoring data and projections of ambient air quality made in the demonstration that accompanies the maintenance plan. EPA believes the area will continue to meet the National Ambient Air Quality Standards (NAAQS or standards) for PM 10 for at least 10 years beyond this redesignation, as required by the Act. A detailed description of our proposed action to rescind the March 12, 1999 finding and to approve the Ada County/Boise, Idaho maintenance plan and redesignation request was published in a proposed rulemaking in the Federal Register on July 30, 2003 (68 FR 44715).

EPA received the following comments from six commenters on the July 30, 2003 proposal for the Ada County/Boise, Idaho area. All comments either were in support of the proposal, requested further explanation on certain aspects of the proposal, or were outside the scope of the proposal.

Comment: The air in Canyon County is not polluted because of vehicle emissions. An inspection and maintenance program is not needed in Canyon County.

Response: EPA is approving a maintenance plan for Ada County, not Canyon County. However, to the extent that the State believes that control measures outside the Ada County/Boise, Idaho area support the maintenance plan, EPA is approving, at the State's request, those measures as part of the maintenance plan as well. The federal Clean Air Act does not specify the particular control measures that must be used to demonstrate maintenance of the standards. Under the Act, state and local governments have the primary responsibility to determine which pollution sources to control, figure out how controls will be implemented, and demonstrate the controls result in attainment and maintenance of the NAAQS. In this case, the State has made that demonstration. EPA's role is to ensure that whatever measures are selected produce the emissions reductions needed to meet the standards. Our action here merely approves the maintenance plan and its associated control measures already adopted by the State and imposes no additional requirements.

Comment: Canyon County and Ada County are not one airshed. Canyon County should not be included in the monitoring network for the Ada County area. Canyon County should be its own separate area and treated separately.

Response: For the purpose of air quality management, the boundary of an air shed is determined based on, among other things, the meterological and topographical parameters, pollution source and impact area, and land use characteristics. Often the airshed boundary does not follow political jurisdiction boundaries such as a county line or city line. Based on the air quality studies and data available to EPA, including the modeling reconciliation in Appendix D of the maintenance plan, it is evident that pollution production and transport in the Treasure Valley area encompass geographical boundaries larger than any specific county border. As both Ada and Canyon County are experiencing rapid growth and expansion, it is logical that the airshed management efforts focus on the larger area. The State selects the monitor locations (including in Ada County and Canyon County) that make up its monitoring network. EPA has approved the State's network as meeting the criteria in 40 CFR 58 appendix D.

Comment: The Middleton monitors do not reflect Canyon County air quality and should be repositioned. DEQ should not use the Middleton monitors to define Canyon County's ozone reading.

Response: The Middleton monitors measure ozone and PM 2.5 . This action relates to PM 10 . We will forward the comments related to ozone and PM 2.5 to appropriate representatives at IDEQ.

Comment: EPA should emphasize that this action has nothing to do with Canyon County and asks that we refute the statement in the settlement agreement that IDEQ intends to develop an air quality plan for Treasure Valley.

Response: While EPA agrees that IDEQ's efforts to develop an air quality plan for the Treasure Valley are independent of our action on the maintenance plan, EPA has no basis for refuting IDEQ's intentions to develop an air quality plan for the Treasure Valley. It is entirely appropriate for—in fact EPA encourages—the State to take any preventive steps needed to ensure air quality standards are met in the Treasure Valley and all of Idaho.

Comment: The basis for reinstating the PM 10 NAAQS is no longer valid due to a decision favorable to EPA in the American Trucking Association, et al. v. EPA et al. , and consolidated cases.

Response: As explained in the proposal, the basis for revoking the 1987 PM 10 standards in the Ada County/Boise, Idaho nonattainment area was eliminated when the U.S. Court of Appeals for the District of Columbia vacated the revised 1997 PM 10 standards. Since we revoked the 1987 standards and the court vacated the 1997 standards, there are no federal PM 10 standards currently applicable in the Ada County/Boise, Idaho area. Therefore, we are rescinding the finding that the 1987 PM 10 standards are no longer applicable in Ada County/Boise, Idaho and reinstating the 1987 PM 10 standards. The decision in American Trucking Association referred to by the commenter addressed the PM 2.5 standards and not the 1987 or 1997 PM 10 standards.

Comment: Control measures are not needed in Canyon County because Ada County has attained the PM 10 NAAQS since 1999.

Response: In order for EPA to redesignate the Ada County/Boise, Idaho area, the State must not only show that the area is currently attaining the PM 10 NAAQS, but that it will continue to attain the PM 10 NAAQS 10 years into the future. In making its demonstration, the State must consider anticipated changes to the area over the next 10 years, including the impacts of surrounding areas. EPA has reviewed the State's 10 year demonstration and finds that the demonstration meets the review criteria derived from the Act, general preamble (57 FR 13498), and further interpreted by a policy and guidance memorandum from John Calcagni, September 4, 1992, Procedures for Processing Requests to Redesignate Areas to Attainment (Calcagni Memorandum). (See also Section III of the Technical Support Document). Based on this review, EPA has no basis for disapproving any control measures in the maintenance plan submitted by the State. The federal Clean Air Act does not specify the particular control measures that the State must use to demonstrate maintenance of the standards. Under the Act, state and local governments have the primary responsibility to determine which pollution sources to control and how those controls will be implemented. EPA's role is to ensure that whatever measures are selected produce the emission reductions needed to meet the standards. In this case, the State has made that demonstration. Our action here merely approves the maintenance plan and its associated control measures already adopted by the state and imposes no additional requirements.

Comment: The commenter requests that all references to Canyon County be omitted in the approval of the Ada County SIP.

Response: As discussed above, the Ada County/Boise, Idaho maintenance plan meets EPA's review criteria. EPA has no basis for omitting references to Canyon County.

Comment: Canyon County and Ada County should not be combined because of geological, geographical, population, and economic activity differences. The plan is only about Ada County, not Canyon County, and the counties should not be combined because they differ in various ways.

Response: EPA agrees that there are differences between Canyon County and Ada County. EPA believes IDEQ has appropriately accounted for those differences in its emissions inventory and modeling demonstration, as indicated in our evaluation of those elements in the Technical Support Document.

Comment: The commenter questions whether The Amalgamated Sugar Company contributes to the Ada County PM 10 levels since Canyon County has not exceeded the standards.

Response: The Amalgamated Sugar Company, although located in Canyon County, is along the Ada County's upwind flow which sometimes impacts a portion of the Ada County PM 10 nonattainment area. It is appropriate to include in the maintenance demonstration a source that is located in an attainment area but impacts or interferes with the air quality of the nonattainment or maintenance area at issue in the SIP or maintenance plan.

Comment: Contingency measures should not apply to Canyon County.

Response: The federal Clean Air Act requires contingency provisions to be an element of a maintenance plan but does not specify which ones to include or where or how they should be applied. Under the federal Clean Air Act, state and local governments have the primary responsibility of determining the location, scope, and timing of particular contingency measures. It is EPA's role is to ensure that whatever measures are selected would promptly correct any violation of the NAAQS that occurs after redesignation of the area. The contingency measures in the plan meet this requirement. Our action here merely approves these contingencies as part of the maintenance plan and imposes no additional requirements.

Comment: The commenter asks about the meaning of the correction made to the PM 10 maintenance plan.

Response: EPA assumes the commenter is referring to a revision IDEQ submitted to EPA on July 21, 2003. The revision corrected an error found in the fugitive road dust emissions for future years. While this correction changed the value of future fugitive road dust emissions, it did not change the method for determining fugitive road dust emissions in the submitted maintenance plan. IDEQ reran the model to incorporate the correction and submitted an addendum reflecting the results of the new modeling run.

Comment: The commenter inquires who has authority to withhold Federal Funds.

Response: EPA assumes the commenter is referring to section 176(c)(2) of the Clean Air Act, which prohibits a Federal agency from approving, accepting or funding any transportation plan, program or project in certain circumstances. Under this provision, the Federal Government, not a State or local agency, has the ability to withhold Federal transportation funds.

Comment: The commenter inquires about the criteria EPA uses to approve a submission from COMPASS and IDEQ.

Response: EPA assumes the commenter means a SIP submission. SIP submissions are submitted by the Governor of Idaho or his designee. As discussed in the proposal on July 30, 2003 (68 FR 44715), the State's submission must meet the requirements of the Clean Air Act. The review criteria is derived from the Act, general preamble, and further interpreted by a policy and guidance memorandum from John Calcagni, September 4, 1992, Procedures for Processing Requests to Redesignate Areas to Attainment (Calcagni Memorandum). (See also Section III of the Technical Support Document).

Comment: The monitors in Canyon County show different levels of pollutants than in Ada County and, therefore, approvability of the plan is questionable.

Response: Air quality monitors in an airshed do not record same levels at the same time because windflows or pollution sources impacting two monitors are not same. Unless there is a region or area-wide pollution source that is causing the problem, one expects to see different levels at different monitors.

Comment: More monitors are needed and monitors should be at locations indicating the most air quality problems.

Response: As mentioned above, the State selects the monitors that make up the State monitoring network. EPA has approved the State's network as meeting the criteria in 40 CFR 58 appendix D. EPA, however, will forward this comment to monitoring representatives at IDEQ.

Comment: Dairy operations should have more restrictions.

Response: The State of Idaho has the primary responsibility to determine which sources to control to meet the NAAQS. Our action here merely approves the maintenance plan as meeting Federal requirements and imposes no additional requirements. In this instance, IDEQ has devised an approach that meets and maintains attainment needs by controlling the sources that they have chosen.

Comment: The CMAQ model should be used to compare results with Environ's CAMX model.

Response: CMAQ is a more sophisticated and advanced air quality model. The input parameters (chemistry and meteorology) to run the CMAQ model are not yet fully developed for the Ada County/Boise, Idaho area. IDEQ, EPA, and several other partners are currently working together to develop a CMAQ modeling system for the northwest including the Boise area for use in future applications.

Comment: The objective should be to model the meteorology and the air quality of the valley in real time.

Response: EPA agrees that a real time modeling system would be valuable for the air quality management. EPA Region 10, states, and several other partners have been collaboratively working to develop a real time air quality simulation system for the northwest including the Boise area. However, for the purpose of an attainment or maintenance demonstration, it is generally adequate to simulate typical historical worst case pollution episodes.

Comment: Air quality impacts from industry are overstated because the potential to emit is used rather than actual emissions. Micron PC.com's projected emissions are over-estimated and requests that IDEQ correct them.

Response: IDEQ appropriately determined industrial emissions based on a source's potential to emit because there are no permanent, enforceable measures to prevent the higher potential emission levels from occurring. If a facility's projected emissions are higher than its potential to emit, the use of those emissions in the State's demonstration would indicate over-control and would have no effect on the approvability of the maintenance plan. We will, however, forward this correction request to IDEQ.

Comment: The commenter emphasizes the importance of enforcing and monitoring facility compliance with the operating permits that the state relied on to demonstrate attainment. The commenter also encourages active enforcement of local laws, permits, regulations and ordinances, specifically the municipal solid waste ban because in order to take credit for reductions from these new laws, they must be successfully implemented. Additionally, the commenter also requests that EPA require IDEQ to certify that all inspections are completed and facilities are in compliance.

Response: EPA agrees that the enforcement of operating permits, laws, regulations, and ordinances is an important component of the State's air quality control program. As discussed in the Technical Support Document, the SIP and its control measures meet the requirements for permanent and enforceable measures. EPA further believes that the state has adequately shown that it has the appropriate personnel, funding and authority to enforce and ensure compliance of its permits, laws, regulations and ordinances. Since we are taking final action on a proposal to approve the States's maintenance plan and request to redesignate the Ada County/Boise, Idaho as an attainment area and since the State's submission meets all the requirements for approval, it is not appropriate in this action to impose additional requirements as requested by the commenter.

Comment: The maintenance plan should be changed if permit conditions that were relied on to demonstrate compliance are changed.

Response: EPA agrees with the commenter. Because emission rates must reflect permanent, enforceable measures, any changes to the permit conditions relied on to demonstrate compliance with the PM 10 NAAQS are not federally enforceable until the State submits and EPA approves the revised conditions.

The Environmental Protection Agency rescinds its earlier finding that the PM 10 standards promulgated on July 1, 1987 and the accompanying nonattainment designation and classification are no longer applicable in the Ada County/Boise, Idaho area, and simultaneously, approves a PM 10 SIP maintenance plan for the Ada County/Boise Idaho area and to redesignate the area from nonattainment to attainment.

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 Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 26, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Throughout this document, wherever “we,” “us,” or “our” is used, we mean the EPA. Please note that if EPA receives relevant adverse comment on an amendment, paragraph or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of a relevant adverse comment.

EPA is approving the Grants Pass PM-10 Maintenance Plan and redesignating the Grants Pass PM-10 nonattainment area to attainment. Grants Pass is a city in southern Oregon with a population of approximately 36,000. In the late 1980's Grants Pass recorded PM-10 concentrations significantly above the level of the 24-hour PM-10 standard.

On November 15, 1990, the Clean Air Act Amendments of 1990 were enacted (Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q). Under section 107(d)(1)(C) of the Clean Air Act (CAA), the Grants Pass, Oregon, area was designated nonattainment for PM-10 by operation of law because the area had been designated a Group I planning area before November 15, 1990. Group I planning areas were identified on August 7, 1987. See 52 FR 29383. On October 31, 1990, EPA clarified the description of certain Group I planning areas, including the Grants Pass area. See 55 FR 45799. These areas were called “initial PM-10 nonattainment areas.” On March 15, 1991, EPA announced these areas and classified them as moderate PM-10 nonattainment areas. See 56 FR 11101.

Nonattainment areas can be redesignated to attainment after the area has measured air quality data showing it has attained the NAAQS and when certain planning requirements are met. Section 107(d)(3)(E) of the CAA, and the General Preamble to Title I (57 FR 13498) provide the criteria for redesignation. These criteria are further clarified in a policy and guidance memorandum from John Calcagni, September 4, 1992, Procedures for Processing Requests to Redesignate Areas to Attainment. The criteria for redesignation are:

(1) The Administrator determines that the area has attained the relevant national ambient air quality standard;

(2) The Administrator has fully approved the applicable implementation plan for the area under section 110(k) of the Act;

(3) The Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan, applicable Federal air pollution control regulations, and other permanent and enforceable reductions;

(4) The Administrator has fully approved a maintenance plan for the area as meeting the requirements of CAA section 175A; and

(5) The State containing the area has met all requirements applicable to the area under section 110 and part D of the CAA.

Before an area can be redesignated to attainment, all applicable State Implementation Plan (SIP) elements must be fully approved. The following is a summary of EPA's analysis and conclusion regarding the maintenance plan of Grants Pass and the State's redesignation request. Additional detail regarding EPA's review and analysis may be found in the technical support document which is located in the public docket for this action.

The CAA requires States to follow certain procedural requirements for submitting SIP revisions to EPA. Section 110(a)(2) of the CAA requires that each SIP revision be adopted by the State after reasonable notice and public hearing. The State then submits the SIP revision to EPA.

The Oregon Department of Environmental Quality (ODEQ), which has regulatory authority for sources of air pollution in the Grants Pass PM-10 nonattainment area, developed the PM-10 maintenance plan. On May 20, 2002, ODEQ notified the public of the public hearing on the plan in the following newspapers: Herald and News , Klamath Falls, Oregon, Daily Journal of Commerce , Multnomah County, Oregon, Grants Pass Daily Courier , Grants Pass, Oregon, and in the Oregonian , Portland, Oregon. On July 15, 2002, ODEQ held the public hearing at the Josephine Co. Courthouse, Grants Pass, Oregon. On October 4, 2002, the State of Oregon adopted A Plan for Maintaining the National Ambient Air Quality Standards for Particulate Matter (PM-10) In Grants Pass Urban Growth Boundary Section 4.56 of the State Implementation Plan.

The State meets the requirements for reasonable notice and public hearing under section 110(a)(2) of the CAA.

Section 107(d)(3)(E)(i) of the CAA requires that the Administrator determine that the area has attained the applicable NAAQS. The primary 24-hour NAAQS for Particulate Matter with an aerodynamic diameter equal to or less than 10 micrometers (PM-10) is 150 micrograms per cubic meter (ug/m3) for a 24-hour period (midnight to midnight), not to be exceeded more than once per year averaged over three calendar years. The annual NAAQS for PM-10 is 50 ug/m3 annual arithmetic average, averaged over three calendar years. PM-10 in the ambient air is measured by a reference method based on 40 CFR part 50, appendix J. EPA considers an area as attaining the PM-10 NAAQS when all of the PM-10 monitors in the area have an exceedance rate of 1.0 or less averaged over three calendar years. (See 40 CFR 50.6 and 40 CFR part 50, appendix J.) In addition, the area must continue to show attainment through the date that EPA promulgates redesignation to attainment.

Oregon's redesignation request for the Grants Pass PM-10 area is based on valid ambient air quality data for calendar years 1987 through 2000. EPA reviewed this data as well as data for calendar years 2001 and 2002. There have been no exceedances of the PM-10 standard since 1988. These data were collected and analyzed as required by EPA (see 40 CFR 50.6 and 40 CFR part 50, appendix J). These data have met minimum quality assurance requirements and have been certified by the State as being valid. EPA analyzed all available PM-10 data collected from 1988 through 2002 and determined that the Grants Pass area has not violated the PM-10 standard since 1990. Because of the form of the standard, it requires three years of data to show no violation of the standard. For Grants Pass, 1988, 1989, and 1990, had an expected exceedance rate of less than 1.0.

Section 107(d)(3)(E)(v) of the CAA requires that an area must meet all applicable requirements under section 110 and Part D of the CAA. EPA interprets this to mean the State must meet all requirements that applied to the area prior to, and at the time of, the submission of a complete redesignation request. Below is a summary of how Oregon meets these requirements.

On January 25, 1972, Oregon submitted the SIP to EPA. EPA approved the SIP on May 31, 1972. See 37 FR 10888. For purposes of redesignation, the Oregon SIP, including the Grants Pass PM-10 SIP, were reviewed to ensure that the SIP satisfies the CAA requirements of section 110(a)(2). See 40 CFR 52.1970 for a complete listing of subsequent Oregon SIP submittals and EPA approvals.

Part D provides general requirements applicable to all areas designated nonattainment. The general requirements are followed by a series of subparts specific to each pollutant. All PM-10 nonattainment areas must meet the applicable general provisions of subpart 1 (section 172) as well as the specific PM-10 provisions in subpart 4, “Additional Provisions for Particulate Matter Nonattainment Areas.”

Section 172(c)(3) of the CAA requires a comprehensive, accurate, current inventory of actual emissions from all sources in the Grants Pass PM-10 nonattainment area.

Oregon included in the proposed Grants Pass maintenance plan an emission inventory for calendar year 1996. This year corresponds to the year used in calculating the design value (discussed below) which is at a level well below the standard. This inventory thus represents emissions that are at a level to protect the standard. The inventory is comprehensive, accurate and current and meets the requirements of section 172(c)(3) of the CAA.

The Clean Air Act Amendments of 1990 contained revisions to the new source review (NSR) program requirements for the construction and operation of new and modified major stationary sources located in nonattainment areas. The Act requires states to amend their SIPs to reflect these revisions, but does not require submittal of this element along with the other SIP elements. The Act established June 30, 1992 as the submittal date for the revised NSR programs. See section 189(a) of the Act. The General Preamble calls for states to implement their existing NSR programs during the interval preceding our formal approval of their revised NSR programs.

In Grants Pass, the requirements of the Part D NSR program will be replaced by the Prevention of Significant Deterioration (PSD) program and the maintenance area NSR program upon the effective date of redesignation. The Oregon Department of Environmental Quality rules for new source review that meet both attainment and nonattainment area requirements (provisions of OAR Chapter 340, Divisions 200, 202, 209, 212, 216, 222, 224, 225, and 268), that were in effect on October 8, 2002, were approved on January 22, 2003, (68 FR 2953) as meeting the requirements of Title I, Parts C and D of the Clean Air Act.

Portions of Divisions 222, 224, and 225 were revised as part of the Grants Pass PM-10 Maintenance Plan and the Klamath Falls Maintenance Plan development effort. These rule revisions were approved by EPA on January 22, 2003 (68 FR 2953).

Section 0030 and 0040 of Division 204, effective October 8, 2002, are approved in this action. These sections are revised to remove Grants Pass from the PM-10 Nonattainment Area list and add it to the PM-10 Maintenance Area list.

Once an area is redesignated, the state must continue to operate an appropriate air monitoring network in accord with 40 CFR part 58 to verify attainment status of the area.

The State of Oregon has operated a PM-10 monitor in the Grants Pass area between 1987 and 1999 at the 11th and K Street site. A replacement site was established in 1999 at the sewage treatment plant and continues to operate. In the proposed Grants Pass maintenance plan, the State of Oregon commits to continued operation of the PM-10 monitoring station.

States containing initial moderate PM-10 nonattainment areas were required to submit, by November 15, 1991, a nonattainment area plan that implemented reasonably available control measures (RACM) by December 10, 1993, and demonstrate whether it was practicable to attain the PM-10 NAAQS by December 31, 1994. In order to qualify for redesignation, the SIP for the area must be fully approved under section 110(k) of the Act, and must satisfy all requirements that apply to the area. Oregon's CAA Part D initial PM-10 plan for the Grants Pass PM-10 nonattainment area was submitted on November 15, 1991. EPA approved the Grants Pass PM-10 attainment plan on December 17, 1993. See 58 FR 65934. Thus, the area has a fully approved nonattainment area SIP.

Section 107(d)(3)(E)(iii) of the CAA provides that for an area to be redesignated to attainment, the Administrator must determine that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan, implementation of applicable Federal air pollutant control regulations, and other permanent and enforceable reductions.

The PM-10 emission reductions for the Grants Pass area were achieved through a number of permanent and enforceable control measures including a mandatory woodstove certification program for all new stove sales, a mandatory woodstove and open burning ordinance, a ban on the sale and installation of uncertified woodstoves, emission limits for veneer dryers and wood fired boilers, and major source NSR. EPA approved these control measures as part of the Part D SIP submittal on December 17, 1993. These control measures will continue into the maintenance period for the Grants Pass area.

The State has demonstrated that the air quality improvements in the Grants Pass area are the result of permanent enforceable emission reductions and are not the result of either economic trends or meteorology. EPA concludes that the modeling demonstration shows the area will meet the NAAQS even under the worst case meteorological conditions.

Section 107(d)(3)(E)(iv) of the CAA provides that for an area to be redesignated to attainment, the Administrator must have fully approved a maintenance plan for the area meeting the requirements of section 175A of the CAA. As described below, Oregon has complied with the core requirements necessary for an approved maintenance plan. Accordingly, today's action approves the maintenance plan for Grants Pass, Oregon.

The plan must contain an attainment year emissions inventory to identify the level of emissions in the area which is sufficient to attain the PM-10 NAAQS. This inventory is to be consistent with EPA's most recent guidance on emissions inventories for nonattainment areas available at the time and should represent emissions during the time period associated with the monitoring data showing attainment. The Grants Pass maintenance plan contains an accurate, current, and comprehensive emission inventory for calendar year 1996. This year is consistent with the design value which was calculated for 1996.

EPA policy contained in the September 4, 1992, Calcagni memo, requires that the maintenance plan contain the same level of air quality modeling to demonstrate maintenance that was used in the original attainment plan to demonstrate attainment. The Grants Pass attainment plan approved by EPA on December 17, 1993, contained simple proportional modeling. This approach was acceptable because Grants Pass is a simple air shed and residential wood combustion is a primary source of emissions contributing to the measured violations. EPA agreed with Oregon that simple proportional modeling of emissions from 1996 to the maintenance year of 2015 and the use of the 1996 design value would be an adequate approach for the maintenance demonstration. Oregon projected emissions for the Grants Pass area to 2015 using appropriate growth factors for population and industrial growth. The increase in emissions from 1996 to 2015 was used to predict both worst case 24-hour PM-10 and annual PM-10 concentrations.

The 24-hour 1996 design value is 78 μg/m 3 . The 1996 annual design value is 20 μg/m 3 . Using the 1996 emission inventory and the emissions growth projections to 2015 of approximately 15%, maintenance year PM-10 concentrations can be calculated. This emission growth is due to population growth and at the same time offset by reduction in woodstove emission due to the turnover of uncertified stoves. The projected PM-10 levels will be 89 μg/m 3 worst case 24-hour concentration and 21.4 μg/m 3 annual average concentration in 2015. The 24-hour and annual standards will be maintained.

Continued ambient monitoring of an area is required over the maintenance period. Section 4.55.4.3 of the Grants Pass maintenance plan provides for adequate ambient monitoring to be continued in the area for the maintenance period.

Section 175A of the Act requires that a maintenance plan include contingency provisions, as necessary, to correct any violation of the NAAQS that occurs after redesignation. At a minimum, the contingency provisions must include a commitment that the State implement all measures contained in the nonattainment SIP prior to redesignation.

The Grants Pass maintenance plan continues implementation of the control measures contained in the nonattainment area SIP, with the exception of the nonattainment area major new source review. Major new source review will continue through the PSD program. Thus, the State has met the minimum requirement.

In addition to the minimum requirements, the Grants Pass maintenance plan contains a contingency plan that consists of two phases. Phase I is triggered if any PM-10 concentration equals or exceeds 120 μg/m 3 , 24-hour average. Phase I would require a review of the conditions that caused the high concentrations and recommendations of strategies to address them. Phase 2 of the contingency plan is triggered upon recording a violation of the 24-hour PM-10 standard. Phase 2 of the contingency plan would require the implementation of strategies identified in Phase I as well as nonattainment permitting requirements for all new or modified major sources.

Section 176(c)(2)(A) of the CAA requires regional transportation plans to be consistent with the motor vehicle emissions budget (MVEB) contained in the applicable air quality plans for the Grants Pass area. Unless EPA receives adverse comments on the MVEB for Grants Pass, the motor vehicle emissions budget is deemed adequate to maintain the PM-10 standards through the maintenance year of 2015. The Oregon Department of Transportation, and the U.S. Department of Transportation are required to use the MVEB in this maintenance plan for future transportation conformity determinations.

The MVEB to protect the 24-hour National Ambient Air Quality Standards for PM-10 is proposed for approval for Grants Pass as follows:

EPA is approving the Grants Pass PM-10 maintenance plan and redesignating the Grants Pass, Oregon PM10 nonattainment area to attainment.

1. The Regional Office has established an official public rulemaking file available for inspection at the Regional Office, under Docket number OR-02-003. The official public file consists of the documents specifically referenced in this action, and other information related to this action. The official public rulemaking file is available for public viewing at the Office of Air Quality, (OAQ-107), EPA Region 10, 1200 Sixth Avenue, Seattle, WA 98101. EPA requests that, if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. EPA's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal Holidays.

2. Copies of the State submission and EPA's technical support document are also available for public inspection during normal business hours, by appointment at the Oregon Department of Environmental Quality, 811 SW. Sixth Avenue, Portland, Oregon 97204-1390.

3. Electronic Access. You may access this Federal Register document electronically through the Regulations.gov Web site located at http://www.regulations.gov where you can find, review, and submit comments on Federal rules that have been published in the Federal Register , the Government's legal newspaper, and are open for comment.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or on paper, will be made available for public viewing at the EPA Regional Office, as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in the official public rulemaking file. The entire printed comment, including the copyrighted material, will be available at the Regional Office for public inspection.

You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number by including the text “Public comment on proposed rulemaking OR-02-003” in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

a. E-mail. You may send comments by electronic mail (e-mail) to r10.aircom@epa.gov, please including the text “Public comment on proposed rulemaking OR-02-003” in the subject line. EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly without going through Regulations.gov, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket.

b. Regulations.gov. You may use Regulations.gov as an alternative method to submit electronic comments to EPA. Go directly to Regulations.gov at http://www.regulations.gov, then select Environmental Protection Agency at the top of the page and use the “go” button. The list of current EPA actions available for comment will be listed. Please follow the online instructions for submitting comments. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

c. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to the mailing address identified in Section 2, directly below. These electronic submissions will be accepted in WordPerfect, Word or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By Mail. Send your comments to: Steven K. Body, Office of Air Quality, (OAQ-107), EPA Region 10, 1200 Sixth Avenue, Seattle, Washington, 98101. Please include the text “Public comment on proposed rulemaking OR-02-003” in the subject line on the first page of your comment.

3. By Hand Delivery or Courier. Deliver your comments to: Steven K. Body, Office of Air Quality, (OAQ-107), EPA Region 10, 1200 Sixth Avenue, Seattle, Washington, 98101. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal holidays.

Do not submit information that you consider to be CBI electronically to EPA. You may claim information that you submit to EPA to be CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). EPA will not disclose information so marked except in accordance with procedures set forth in 40 CFR part 2.

In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the official public regional rulemaking file. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public file and available for public inspection without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section.

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 6, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 26, 2003. 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).)

The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. For a complete list of those communities that participate in the NFIP see http://www.fema.gov/fema/csb.shtm .

In addition, the Federal Emergency Management Agency has identified the special flood hazard areas in some of these communities by publishing a Flood Hazard Boundary Map (FHBM) or Flood Insurance Rate Map (FIRM). The date of the flood map, if one has been published, is indicated in the fourth column of the table. In the communities listed where a flood map has been published, Section 202 of the Flood Disaster Protection Act of 1973, as amended, 42 U.S.C. 4016(a), requires the purchase of flood insurance as a condition of Federal or federally related financial assistance for acquisition or construction of buildings in the special flood hazard areas shown on the map.

The Administrator finds that delayed effective dates would be contrary to the public interest and that notice and public procedure under 5 U.S.C. 553(b) are impracticable and unnecessary.

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

Regulatory Flexibility Act. The Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities in accordance with the Regulatory Flexibility Act, 5 U. S. C. 601 et seq. , because the rule creates no additional burden, but lists those communities eligible for the sale of flood insurance.

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

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, October 26, 1987, 3 CFR, 1987 Comp., p. 252.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of section 2(b)(2) of Executive Order 12778, October 25, 1991, 56 FR 55195, 3 CFR, 1991 Comp., p. 309.

Flood insurance, Floodplains.

This is a summary of the Commission's Report and Order, MB Docket No. 03-140, adopted October 1, 2003, and released October 3, 2003. The full text of this Commission decision is available for inspection and copying during regular business hours in the FCC's Reference Information Center, Portals II, 445 12th Street, SW., Rooom CY-A257, Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

This is a synopsis of the Commission's Report and Order , MB Docket No. 03-51, adopted October 1, and released October 3, 2003. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, (202) 863-2893, facsimile (202) 863-2898, or via e-mail qualexint@aol.com.

The Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703 et seq. ) prohibits possession of any bird protected by treaties between the U.S. and Canada, Mexico, Japan, and Russia. Birds covered by the Act are referred to as “migratory birds.” Prior to this rulemaking, persons engaged in providing treatment to sick, injured, or orphaned migratory birds had to obtain a special purpose permit from the U.S. Fish and Wildlife Service under 50 CFR 21.27. The special purpose permit category is used to authorize activities not specifically covered by other existing types of permits.

Currently, approximately 2,500 special purpose permits for migratory bird rehabilitation purposes are active nationwide, representing almost half the approximately 5,500 currently active special purpose permits. The permits were tailored to address migratory bird rehabilitation activities by means of Standard Conditions attached to every permit. Those Standard Conditions are the basis of the regulatory framework established by this rulemaking, which creates a new permit category specifically for rehabilitation of migratory birds.

The rule addresses rehabilitation of threatened and endangered migratory bird species and amends 50 CFR 17 (Endangered and Threatened Wildlife) to exempt persons who obtain a rehabilitation permit from having to obtain an additional permit under part 17 to care for threatened and endangered migratory bird species. Accordingly, the rule contains numerous provisions addressing rehabilitation of threatened and endangered migratory bird species, including additional requirements to notify and coordinate with the Service.

This rule also adds a new permit exception to 50 CFR 21.12 to allow Federal, State, and local wildlife officials, land managers, and public health officials responsible for monitoring public health threats to collect, possess, transport, and dispose of sick or dead migratory birds or their parts for analysis to confirm the presence or absence of infectious disease such as West Nile virus and botulism. The exception does not apply to healthy birds, or where circumstances indicate that the death, injury, or disability of a bird was caused by factors other than infectious disease. This permit exception will facilitate timely response to public health concerns and outbreaks of avian infectious disease.

The rule also provides an exemption to the permit requirements of 50 CFR part 17 and 50 CFR part 21 for veterinarians to temporarily hold and treat listed migratory bird species.

Proposed rule and comments received. On December 6, 2001 (66 FR 63349), we proposed a rule establishing a permit category specifically governing the rehabilitation of migratory birds to replace our system of issuing permits for migratory bird rehabilitation under the miscellaneous Special Purpose permit category authorized by 50 CFR 21.27. We received 199 comments on the proposed rule. Of those, 60 were general comments, most of which were submitted by individuals who were not rehabilitators. Of the remaining 139 comments, 123 were from rehabilitators; 10 were from State agencies; and 6 were from associations.

The following preamble text discusses the substantive comments received and provides our responses to those comments. Additionally, it provides an explanation of significant changes from the proposed rule. We do not address the comments that were favorable and contained no recommendations for revisions. Comments are organized by topic. The citations in the headings correspond to provisions within the Final Rule.

Revisions to 50 CFR part 17: Comment: The rulemaking contains provisions that revise § 17.21 to exempt permitted migratory bird rehabilitators from having to obtain an additional permit under 50 CFR 17, which governs federally listed threatened and endangered species. Yet the word “endangered” is not accompanied by the word “threatened.” Do those provisions apply to species that are threatened, as well as to those that are endangered?

Service response: The rule addresses both threatened and endangered species. Within existing regulations, § 17.21 addresses endangered species, specifically, while § 17.31 addresses threatened species. However, by reference, most of § 17.21 does apply to threatened, as well as endangered, species because the regulations at § 17.31 state: “Except as provided in subpart A of this part, or in a permit issued under this subpart, all of the provisions of § 17.21 shall apply to threatened wildlife, except § 17.21(c)(5)” [italics added here for emphasis]. Thus, in order to exempt rehabilitators from the requirement to obtain a separate permit under part 17 to rehabilitate both endangered and threatened species, this rule needs only to amend the sections of part 17 that address endangered species (§ 17.21), and not also § 17.31, which addresses threatened species.

Scope of Regulations. (§ 21.2): The proposed rule contained revisions to § 21.2 in order to allow the new permit regulation to cover rehabilitation of eagles as well as other migratory birds. This was necessary because, under current regulations, permits authorizing activities involving eagles are covered under separate regulations at part 22, rather than part 21, which covers permits for all other migratory birds. Eagles have their own permit regulations because they are protected not only by the MBTA, but also by the Bald and Golden Eagle Protection Act (BGEPA), which contains different, and in some respects more protective, language than the MBTA. This final rule revises the proposed § 21.2 language in order to clarify that the migratory bird permit exemptions at § 21.12(a), (c), and (d) also apply to eagles.

This final rule also introduces a minor revision to part 22 (eagle permits). The revision to § 22.11 accomplishes the same purpose as the changes to § 21.2, and was necessary to bring part 21 (migratory bird permits) and part 22 into agreement. Prior to this rulemaking, § 22.11 provided that certain actions prohibited by the BGEPA may be permitted only under part 22, part 13, and/or § 21.22 (banding or marking permits). Thus, the only permit regulations within part 21 that applied to eagles were regulations pertaining to banding and marking permits. The new § 22.11 language extends the application of part 21 to eagles, by providing that actions prohibited under the BGEPA may be permitted by part 22, part 13, and/or part 21, as provided by § 21.2.

Permit exemption for public health officials. § 21.12(c): The Service has revised this provision for the final rule by adding employees of land management agencies to the list of exempted personnel who may collect infected birds without a permit. We made this revision because of the increasing presence of West Nile virus nationwide, which has been accompanied by an increased need for land managers, such as the National Park Service, to monitor the spread of the virus in avian populations on public lands.

Comment: The word “toxins” should be changed to “causes” to allow public health officials to pick up birds injured by natural causes.

Service response: Replacing the word “toxins” with “causes” would create a different result from what we intended. This provision was not meant to allow public health officials to collect birds injured by natural causes or accidents. Rather it is intended to cover only situations where birds are suspected to have been stricken by infectious diseases (including those caused by natural toxins). The final rule continues to provide that public health officials acting without a permit would not be authorized to collect and possess birds that appear to have been injured as the result of anything but infectious diseases or natural toxins. (A different provision within the new permit regulation authorizes any person to pick up an injured bird in order to immediately take it to a permitted migratory bird rehabilitator.)

Comment: Persons exempt from migratory bird permit requirements by § 21.12 should still have to adhere to some facility and husbandry standards.

Service response: As part of a separate rulemaking, we intend to propose language that addresses § 21.12 permit exemptions and establishes baseline facility and husbandry requirements for those entities exempted under § 21.12.

Comment: Public health officials will not adequately safeguard the birds, because they won't be able to recognize the differences between public health threats and other conditions that do not affect public health. Rehabilitators should accompany them. Birds may be unnecessarily killed. The regulations need to include provisions addressing the care of these birds after they are collected, as well as a requirement to notify a permitted rehabilitator, and recordkeeping requirements.

Service response: Rehabilitators are free to volunteer their services to accompany such public health officials. However, whether or not rehabilitators are present, these officials need to be able to pick up birds that may be evidence of a high risk to public health. Furthermore, the majority of these birds will already be dead or mortally ill. We do not agree that it would be in the best interest of the overall protection of migratory birds, or that it will enhance public perception of the field of migratory bird rehabilitation, to impose onerous recordkeeping requirements on persons acting to protect public health in situations where most birds are dead or doomed.

Permit exemption for veterinarians § 21.12(d): Comment: Veterinarians are not usually trained to treat birds. And wild birds may be given less priority since they are not associated with paying customers. Veterinarians should be required to get permits.

Service response: The purpose of this exemption is to make legal a practice that is common today—that is, the situation where a person finds an injured bird, and not knowing what else to do, brings it to a veterinarian. Many veterinarians do not want to turn away an injured creature, particularly if it means that it may not survive long enough to be taken to a permitted migratory bird rehabilitator. Right now, if the veterinarian tries to stabilize the bird, he or she is violating the law. The Service believes that veterinarians should not be forced to make the choice between providing emergency care to a stricken bird and breaking the law. Furthermore, we believe that this provision will foster greater awareness within the veterinary community of legal status and medical needs of migratory birds, and will build relationships and strengthen communication between veterinarians and migratory bird rehabilitators, resulting in an overall net benefit to migratory birds.

Comment: The veterinary permit exemption is not needed because the new permit regulation's “Good Samaritan clause” at § 21.31(a) should cover veterinarians already.

Service response: The good Samaritan clause does not authorize persons to retain birds or to provide stabilizing medical treatment or euthanasia. Under the Good Samaritan clause, a person who finds and takes temporary possession of an injured bird is required to contact a permitted rehabilitator, and transfer the bird to them immediately.

Comment: Veterinarians should be required to contact the Service for one of the following: a referral to a permitted migratory bird rehabilitator, permission to stabilize for transfer within 24 hours, or permission to euthanize.

Service response: The rule states that veterinarians must transfer any bird they do not euthanize to a permitted migratory bird rehabilitator. Veterinarians may contact the Service if they need to find a local rehabilitator, but we do not see what purpose it would serve to require them to contact us for a referral, when in some cases, they will already have such information. Second, the rule only provides authority for necessary stabilization of the bird's condition, which we would certainly grant, should the vet call us, so we do not see what purpose it would serve to require the veterinarian to call us for permission. Finally, euthanasia is a means to stop the suffering of the bird. To require a veterinarian to call the Service could unduly prolong such suffering, so the rule does not require this either.

Comment: Veterinarians should not have to call U.S. Fish and Wildlife Service's Ecological Services personnel when they receive an injured federally listed migratory bird species. Rather, they should have to call a permitted rehabilitator.

Service response: The rule requires veterinarians to contact the Service for the same reason that it requires rehabilitators to contact the Service: specialized facilities exist to care for some listed species, and in those cases, it could be critical that the bird be transferred to the designated facility as soon as possible.

Comment: Why is the veterinarian's requirement to contact the Service when they receive a listed species different than the requirement for rehabilitators? The rule requires veterinarians to contact the Ecological Services Office, whereas rehabilitators are required to contact their issuing Migratory Bird Permit Office?

Service response: Veterinarians are not permit holders, and therefore have no special relationship with the Service. It is just as easy for them to keep the telephone number of the local Ecological Services Office handy (which is the decisionmaking body in this scenario) as it is for them to contact the Regional Migratory Bird Permit Office. In contrast, permitted rehabilitators established a relationship with the Service's Migratory Bird Permit Office (the issuing office) when they applied for and were issued a permit. Contacting the issuing office is easier for them because the telephone number is included with their permit. The issuing office can then contact the Ecological Services Office. In addition, we hope that this rule will foster a new relationship between veterinarians and the Service in relation to migratory birds. In the case of endangered species, it makes sense that that relationship be with Ecological Services, the Service's office that handles listed species.

Comment: Veterinarians should not have to keep records, except for the birds they euthanize, since the rest are transferred to permittees who keep the records.

Service response: We agree with this comment. The rule has been revised to require veterinarians to keep records of only those birds that they euthanize or which otherwise die in their care.

Comment: The phrase “necessary treatment” is not well-defined. “As soon as practicable” is too ambiguous. Veterinarians should have to apply for a permit if they wish to do more. Veterinarians should be required to contact rehabilitators before performing any extended treatment.

Service response: We have revised the final rule to clarify that, absent a permit, veterinarians may only stabilize or euthanize birds, and we have established a time limit of 24 hours in which veterinarians may keep birds after stabilization without contacting the permit office for permission to retain the bird.

Comment: The rule should require veterinarians to keep birds separated from other animals and away from noise and disturbance.

Service response: While we agree with the recommendation to separate birds from noise and other animals, many vets may not be able to provide such an ideal situation, yet may still be able to aid injured birds that otherwise might not be saved.

Comment: Veterinarians should be required to record the name and contact information for the person who delivered the bird, so that fledglings can be reunited with their parents.

Service response: Under the rule, veterinarians are not authorized to accept healthy fledglings. The rule exempts them from the permit requirement only in cases of sick or injured birds.

Comment: Many veterinarians are not trustworthy; some will use birds to experiment on. How will they be monitored?

Service response: We do not agree that many veterinarians are likely to experiment on migratory birds.

Comment: Veterinarians should not be exempt from permitting requirements. They do far too much damage (stress issues, imprinting, medical supply issues, surgical issues, caging concerns, etc.).

Service response: The rule requires veterinarians to transfer birds to rehabilitators within 24 hours after the bird is stabilized. Many of the concerns noted by the commenter will not arise under this scenario (surgical issues, imprinting). While there is some risk that veterinarians will not provide adequate care, we believe that the majority will, and that the ability of veterinarians to accept birds from the public and stabilize them will result in an overall benefit to migratory birds.

“Good Samaritan clause.” § 21.31(a). Comment: This provision should be revised to require people who pick up birds to transfer them to a permitted rehabilitator within 24 hours, not just “immediately” as the proposed rule says.

Service response: We believe that the language of the proposed rule will better ensure that Good Samaritans do not delay in finding a permitted rehabilitator to accept the bird.

General permit provisions § 21.31(b). Comment: The rule should say that rehabilitators provide “rehabilitative services,” not “medical care.” Only veterinarians may provide medical care, under State licensure.

Service response: We have revised the rule to state that rehabilitators are authorized to provide “rehabilitative care.”

Comment: The 24-hour limit within which rehabilitators are required to transfer species for which they do not have authorization is too short. Sometimes a qualified rehabilitator is not easily accessible or readily available. Also, in some situations it is better for the bird not to be moved so soon.

Service response: We have revised the rule to state that the bird must be transferred within 48 hours. The rule also now provides that the permittee must contact the issuing office for authorization to retain the bird until it can be transferred, if a rehabilitator authorized to receive the bird is not available within 48 hours.

Comment: Rehabilitators should be able to use their birds in educational programs.

Service response: The purpose of the rehabilitation permit is to rehabilitate birds for release to the wild. Birds held under a rehabilitation permit can be used for education only if transferred to an educational permit—after being deemed nonreleasable by a veterinarian. Birds undergoing rehabilitative care that are exposed to humans in educational programs could become imprinted, compromising successful reestablishment in the wild. (Within the context of this rulemaking, the word imprinted means habituated to humans ). Even if not imprinted, the stress from this type of exposure can inhibit the rehabilitation of the bird.

Application process and fee § 21.31(c). Comment: The rule does not say what form the applicant must use to apply for a rehabilitation permit.

Service response: The rule has been revised to state that the applicant must use Service Form 3-200-10b. We removed the provisions within this section that specified what the application must include, since all application requirements are specified on the application form. Notice is published in the Federal Register every 3 years alerting the public of their opportunity to review and comment on Service permit application forms and other forms used to collect information from the public. The current Rehabilitation permit application form was open for public comment on September 6, 2000 (65 FR 54060) and March 8, 2001 (66 FR 13947), and will be open for review and comment again in 2003 or 2004.

Comment: The applicant must submit a letter from a permitted rehabilitator stating that the rehabilitator will provide assistance to the applicant, but the rule does not specify what kind of assistance is envisioned. Is it for mentoring purposes for new rehabilitators, or is it supposed to ensure that there is a “back-up” rehabilitator available in case of illness or absence? If the former, the requirement to have a relationship with another permitted rehabilitator seems to be geared towards novices. Persons renewing their permits should not need to show this.

Service response: The purpose of this requirement is primarily for mentoring purposes for new applicants. A rehabilitator renewing a permit does not need to resubmit the same information he or she provided in the original permit application. Instead, he or she will use a Service permit renewal form, which only asks for any information that has changed since the applicant last applied.

Comment: The requirement to have another permitted rehabilitator vouch for the applicant's experience is unnecessarily burdensome and implies distrust.

Service response: The letter serves to show that the applicant has had experience rehabilitating birds. We do not believe that asking for a showing of experience implies distrust. It is merely a way to distinguish those applicants who have experience from those who do not. We also do not agree that this requirement is overly burdensome. The letter need not be lengthy. Furthermore, this requirement is not new; it has been a requirement on the Special Purpose—Rehabilitation permit application form for over a decade.

Comment: As part of the application requirements, the cooperating veterinarian should not be required to state knowledge of the training and qualifications of the applicant.

Service response: The application does not require such a statement; rather, it recommends that the veterinarian provide such knowledge if he or she has it. However, we will reconsider the need for this language when the application form is eligible for revision.

Comment: People should not be required to have facilities in place before obtaining their permit. It is not reasonable to ask the applicant to build expensive facilities without knowing whether the permit will be granted.

Service response: Having adequate facilities in place is a standard requirement for all permits authorizing possession of live wildlife. A permit can be issued to authorize rehabilitation of types of birds that do not require extensive or expensive facilities. Then, the permittee can upgrade his or her facilities at any time after the permit is issued to house more birds or different species. When such additions are made, the issuing office will expand the authorization on the permit, assuming the other criteria are also met (i.e., the applicant must also have the required experience to rehabilitate the new species he or she wishes to add to the permit).

Comment: The permit application fee should be waived because of the vital public service rehabilitators perform. Rehabilitators voluntarily do the Service's work for them, and are funded through donations and community support. Some may not be able to afford to pay the fee.

Service response: Although we believe the work of rehabilitators is very valuable, it is not a Service responsibility. None of the applicable laws or treaties make provision for care of individual birds, nor are funds appropriated by Congress for such a purpose. Rather, we are charged with and receive funding for implementing the various Migratory Bird Treaties and the Migratory Bird Treaty Act, which prohibit virtually any human contact with migratory birds unless authorized by regulations we issue, or by a permit from us. The permit program has significant costs, and we are directed by Congress and the Office of Management and Budget to charge a fee for providing permits, to recover at least some of these costs. Because of this, we do not receive appropriated funding sufficient to cover all costs of issuing permits, and must depend upon application fee revenues to make up the balance. In this particular case, the permit application fee is $5 or $10 dollars annually, which is not a significant financial burden upon any one applicant.

What criteria will the Service consider before issuing a permit? § 21.31(d). Comment: What criteria will the Service use to decide what species a person will be qualified to rehabilitate? The rule only says he or she must have “adequate experience.” What is “adequate experience?”

Service response: We were reluctant to define exactly what type and amount of experience will be considered adequate, because of the different types of experiences that a person could have that might contribute to his or her ability to rehabilitate birds. An applicant who has cared for hundreds of uninjured orphaned nestlings, but who has never had any hands-on experience with injured birds, will not be qualified for a permit that authorizes rehabilitation of injured and sick birds. Depending on the extent of the applicant's experience working with baby birds, he or she may be qualified for a permit that is restricted to caring for orphaned nestlings. Similarly, hands-on experience working with injured and sick songbirds will not be sufficient to qualify an applicant for a permit to rehabilitate eagles—though it may be enough to enable the applicant to obtain a permit to work with passerines. However, because numerous commenters were uncomfortable without some guidance as to what we will consider “adequate experience,” we revised this section to require at least 100 hours of hands-on experience with the types of species (not each and every specific species) that the applicant intends to rehabilitate, or “comparable experience.” Applicants' experience with migratory bird rehabilitation must span at least 1 year. This indicates an enduring interest in the field, as opposed to a temporary enthusiasm. Up to 20 hours of the time requirement may be fulfilled through attending migratory bird rehabilitation seminars and training courses.

Comment: There should be a formal examination or review process to ensure that applicants have the necessary knowledge to treat migratory birds. Or the Service should set up a training and accreditation program to train prospective rehabilitators.

Service response: While a written test or accreditation program may have value, our priority is that the applicant have hands-on experience in migratory bird rehabilitation. We believe that the application requirements and issuance criteria of this rule will adequately ensure that permittees are qualified.

Comment: People should not be required to have experience before getting their own rehabilitation permit. It is too hard for them to get that experience without first having a permit. Having a permitted rehabilitator with little or no experience is better than having no rehabilitator at all, as would be the case in some areas. In order to gain the prior experience, the Service could institute a “novice” class of rehabilitators who would be more tightly regulated. They could gain their experience during the time spent in the novice class. Also, applicants may not want to admit to experience acquired without a permit.

Service response: We do not believe it is advisable to allow people with little or no experience to handle migratory birds, which are wild animals and have very particular needs. We do not think it would be safe for the people or the birds. Providing safe and effective rehabilitative care for sick and injured migratory birds requires knowledge that is difficult to impossible to acquire without rehabilitation experience. To gain experience, a person dedicated to becoming a migratory bird rehabilitator can volunteer as a subpermittee for a federally permitted rehabilitator. Most rehabilitators can always use the assistance of capable individuals who are willing to learn.

Comment: The regulations should provide for a licensed sponsor who could determine after a year if the subpermittee was ready to receive permittee status.

Service response: We feel that this rule accomplishes the same objectives as a formal 1-year requirement for a sponsor, but with more flexibility. We expect most applicants to gain experience by working with permittees as subpermittees, and we ask the permit applicant to include a letter of reference from a permitted rehabilitator who has knowledge of the applicant's experience.

Comment: The rule should require permittees to have at least 6 months of experience in rehabilitation, a portion of which must occur in the spring.

Service response: The rule has been revised to require that an applicant have experience spanning an entire year, in order to qualify for a permit. The purpose of this provision is primarily to ensure that the applicant's interest is more than fleeting, but it will also make it more likely that successful applicants will have rehabilitation experience during nesting season.

Comment: People should not have to show prior experience with every species they wish to rehabilitate, since more than 800 species of birds are protected by the MBTA.

Service response: The rule requires experience with the types of species you intend to rehabilitate, not with each and every species. For example, if you have adequate experience working with red-tailed hawks, goshawks, and barred owls, we may issue you a permit authorizing rehabilitation of raptors, even though you have never handled Cooper's Hawks, Harris's Hawks or American Kestrels. Of course, issuance of the permit would also be contingent on whether you have adequate facilities for rehabilitating raptors.

Comment: The rule states that the Service will consider how much experience a person has rehabilitating species that are federally listed as threatened or endangered. This language should be removed because most people will have no experience with listed species, since these species are rare.

Service response: We agree with this comment. Although some listed species may be locally abundant where they do occur, most are rarely encountered. Furthermore, rehabilitative treatment for most listed species will not differ categorically from treatment for unlisted birds. The language of the rule has been revised to reflect that permittees will be authorized to accept listed species with the condition that they immediately contact the Service to ascertain whether the Service will require the permittee to transfer the bird to a designated special facility.

Comment: The requirement to have a working relationship with a veterinarian should not apply to rehabilitators who are veterinarians or “other qualified biological specialists” such as ornithologists or raptor biologists.

Service response: We agree that an applicant need not have an agreement with a licensed veterinarian if the applicant is a licensed veterinarian. The rule has been revised to reflect this. However, we do not agree that an advanced degree in biology or ornithology includes the type of medical education that can substitute for veterinary expertise.

Comment: Some rehabilitators do not have access to a veterinarian. They should be able to send birds to rehabilitators who have such a relationship.

Service response: A veterinarian must be available to treat birds that need medical care. To involve another rehabilitator in the transfer to the veterinarian is an unnecessary burden on the second rehabilitator and is not in the best interest of the bird, which may need more immediate medical attention. We believe, and the rule reflects, that the originating rehabilitator should establish his or her own agreement with the veterinarian without going through another rehabilitator, particularly if the veterinarian will wind up treating the bird anyway.

Comment: The rule should state that the veterinarians will provide “medical care,” not “veterinary assistance.” Also, the rule does not define “qualified” veterinarian. It should be changed to “licensed.”

Service response: We agree with these comments and have revised the rule accordingly.

Comment: The rule should contain provisions addressing what happens if the relationship with the veterinarian is terminated. Commenters make no suggestion of what kind of provisions would be appropriate. The rule should state that the rehabilitator must maintain a working relationship with a veterinarian throughout the tenure of the permit.

Service response: We agree with this comment and have revised the rule to add a condition within § 21.31(e) that the permittee must maintain a working relationship with a licensed veterinarian.

Comment: Veterinarians could encounter liability issues if they commit on paper to providing assistance.

Service response: No veterinarian is required to enter into such an agreement. None need participate in migratory bird rehabilitation if it makes him or her uncomfortable. Also, the veterinary relationship has been a requirement of the rehabilitation permit for many years, and we have not heard any concerns from veterinarians regarding this provision.

Comment: The rule should state that an applicant must have “State authorization” rather than a State “permit or license” if required by the State. Some States require authorization, but it is not in the form of either a permit or a license.

Service response: The rule has been revised to include “other authorization.”

Comment: The rule does not say what happens when the rehabilitator loses his or her State permit.

Service response: Section 21.31(g) has been revised to further clarify that the Federal permit is not valid unless the permittee possesses and adheres to the terms of his or her State authorization.

Facilities § 21.31(e)(1). Comment: The Service should not use the Minimum Standards for Wildlife Rehabilitation (MSWR) as guidelines because the MSWR includes references to requirements that are outside the purview of the Service.

Service response: The rule has been revised to clarify that it refers only to the suggested caging dimensions within the MSWR, and not to the other topics within the MSWR.

Comment: The Service should not require rehabilitators to conform to MSWR recommendations because they are too restrictive, and could be cost prohibitive.

Service response: The rule does not require anyone to conform to the MSWR; rather it states that the Service will use the MSWR as guidelines in evaluating applicants' facilities. This provision reflects the Service's current policy. Use of the Minimum Standards provides the permit issuing office with preliminary parameters to use as guidelines for judging what constitutes suitable avian housing. The use of a common reference will foster consistent treatment for applicants.

Comment: The Service may be too rigid about enforcement of the MSWR caging dimensions.

Service response: We have revised the language of this section to state that the Service will authorize variation from the standards where doing so is reasonable and necessary to accommodate a particular rehabilitator's circumstances, unless a determination is made that such variation will jeopardize migratory birds. The revised language states more strongly that the Service will apply flexibility in our use of the Minimum Standards. We will use the Minimum Standards as a “starting point” for evaluating what are acceptable cage sizes, without forcing rehabilitators to have cages with the published dimensions. The rule leaves room for variation, while providing the regulated community with basic parameters that the Service considers acceptable.

Comment: The Service's reliance on the MSWR disenfranchises those rehabilitators who do not belong to IWRC and NWRA and those who are unaware of the existence of the standards document.

Service response: We do not agree that the proposal would disenfranchise nonmembers of the IWRC/NWRA, since that MSWR document is widely available to members and nonmembers alike, and we have been using it and referencing it for years in the Standard Conditions for rehabilitation permits.

Comment: The rule should not reference an external document (MSWR), because it is privately published and subject to change. Which edition does the Service mean to use?

Service response: The rule has been revised to state that it refers to the 2000 (3rd Edition) of the MSWR.

Comment: The Service should replace the use of the MSWR as guidelines with the exact language on Page 20, paragraph 2, of the MSWR. This would give the applicant more flexibility, but ensure high standards.

Service response: The language to which the commenter refers does not include any mention of actual cage dimensions. We need established general parameters for what the Service will consider acceptable cage dimensions. Such parameters give the Service something consistent to work with in assessing applicants' facilities, as well as providing guidance for applicants to use in planning their facilities.

Comment: The rule makes no provision for flight caging. Birds need to do more than open their wings to be conditioned for release.

Service response: Cages used to condition birds for release are addressed in the MSWR as part of the caging dimensions that the Service will use as guidelines.

Comment: No mention is made of overcrowding. No mention is made of providing clean, fresh water and food. No mention is made of the need to safely clean the cage.

Service response: We have added the following conditions to the rule: “Birds must not be overcrowded” and “You must provide the birds in your care with a diet that is appropriate and nutritionally approximates the natural diet consumed by the species in the wild, with consideration for the age and health of the individual bird.” We also replaced the requirement to keep the floor clean and well-drained with the following condition: “Enclosures must be kept clean, well-ventilated, and hygienic.”

Comment: The rule should require that birds not be in sight of predators, including predatory birds. Also, the rule should require facilities to have quarantine areas to protect against the spread of infectious diseases.

Service response: While we view these suggestions as good advice, we consider them beyond the threshold of what ought to be mandated by this regulation.

Comment: The caging dimensions of the MSWR are too “ambitious” for Unlimited Activity and Limited Activity birds, more than a reasonable minimum. Some reduction in overall sizes should be acceptable.

Service response: We realize that some recommendations within the MSWR are viewed by some rehabilitators to be ambitious or optimum rather than minimal, and we agree that in many instances, some reduction in cage size will be acceptable. The rule provides for variation from the suggested dimensions of the MSWR where such variation will not jeopardize migratory birds.

Comment: The MSWR recommends too much water depth in pools for wading birds. Two feet of water can be a struggle for a recuperating pelican. It could also result in hypothermia. These minimum depths should either be reduced or dropped entirely.

Service Response: We appreciate observations like this because they can help us to evaluate facilities. Common sense information from applicants with experience is valuable and will help us to understand why variation from the standards may not jeopardize birds.

Comment: The MSWR recommends wood as a caging material. However, this is a bad material to use in some areas, such as Florida, because it rapidly rots, fails to withstand tropical storms, and blocks healthy air flow in humid environments. Also, soft netting can entangle birds and interfere with air circulation.

Service Response: The rule does not state what specific materials must be used for caging or netting, nor does it reference the MSWR's recommendations for materials.

Comment: The facilities criteria in the rule give no guidance to permit applicants and leave too much to the discretion of the Service.

Service Response: Most people who commented on the facilities standards of the rule were not concerned that too much discretion was left to the Service. Rather, many commenters felt that the standards will not allow for enough flexibility. As written, the rule reflects the Service's intent to be as specific as possible, while at the same time ensuring we remain flexible in authorizing reasonable variation from the specifics.

Comment: The requirement that caging be large enough for the birds to fully extend their wings does not make sense for facilities that are used during the first stages of rehabilitation—when the birds' movement is intentionally restricted.

Service Response: We deleted this provision from the final rule, since cage dimensions are already addressed by reference to the MSWR, which provide for the different types of cages recommended for different stages of recovery.

Comment: The rule should not require permittees to dedicate one cage to just one species. People need to be able to “decorate” cages to suit different species. Will the Service have to approve every new cage to house a different species?

Service Response: The rule does not require that cages be dedicated to particular species. As long as the cage is adequate for any species that will be housed in it, it is acceptable. The permit will authorize categories of species, not individual species. Facilities generally can be built to house types of species ( e.g. , large raptors, small waterbirds), not individual species ( e.g. , Swainson's Hawk, American Avocet). When rehabilitators receive species for which they do not have adequate facilities, they must transfer the birds to rehabilitators with such facilities.

Comment: The prohibition against displaying birds to the public is unrealistic. Keeping the birds from hearing and seeing people (in particular hearing people) can be difficult. Also, rehabilitation birds are a good educational tool that generates public empathy and support for the facility.

Service Response: The Service issues a permit to hold and use birds for educational programs, but it is not the rehabilitation permit. The purpose of the rehabilitation permit is to rehabilitate birds for reintroduction to the wild. Proximity to people can cause stress that impedes recovery, and exposure to human activity can habituate birds to people to the degree that they lose natural instincts necessary to survive in the wild. For those reasons, use of rehabilitation birds in educational formats remains prohibited in the rule. It is possible to insulate birds from the public. However, it is also true that some birds enter rehabilitation facilities already somewhat habituated to humans. The rule continues to provide that rehabilitation birds not be exposed to the public or used in educational formats. However, in rare cases, birds enter rehabilitation facilities already somewhat habituated to humans. Accordingly, the language of the rule has been revised to state that birds may not be displayed to the public “unless you use video equipment, barriers, or other methods to reduce noise and exposure to humans to levels the birds would normally encounter in their habitat. ” (emphasis added).

Comment: The rule should provide that facilities currently approved under the existing Special Purpose Rehabilitation permit will not fall out of compliance under the new rule.

Service Response: The final rule contains a “grandfather clause,” which states, in part, “If your facilities have already been approved on the basis of photographs and diagrams, and authorized under a valid § 21.27 special purpose permit, then they are preapproved to be authorized under your new permit issued under this section, unless those facilities have materially diminished in size or quality from what was authorized when you last renewed your permit, or unless you wish to expand the authorizations granted by your permit ( e.g. , the number or types of birds you rehabilitate).”

Subpermittees § 21.31(e)(3). Comment: The rule should not authorize subpermittees, because their lack of experience results in higher mortality rates and imprinting. People should be encouraged to volunteer with permitted rehabilitators, but volunteers should not be allowed to take birds home to facilities outside those of the rehabilitator.

Service Response: Volunteers are often critical to migratory bird rehabilitation. Few rehabilitators can afford to pay staff to do the work that volunteers do. In addition to the valuable services subpermittees provide to rehabilitators, the subpermittee system serves as a training and recruitment program for bringing new rehabilitators into the field. We do not believe that allowing subpermittees to take birds to off-site facilities endangers migratory birds, because the permittee is responsible for ensuring that subpermittees are qualified to provide adequate care. Off-site subpermittee facilities must meet the same standards as the permittee's facilities. For these reasons, we believe that allowing subpermittees to take birds to authorized off-site facilities ensures better care for migratory birds by increasing the availability of round-the-clock care.

Comment: Subpermittees should not have to be 18 or older. Many younger people can provide valuable services while gaining valuable knowledge and experience.

Service Response: The rule requires that a person who will be performing activities that require permit authorization in the absence of the permittee or subpermittee must be a subpermittee, and it also requires that subpermittees be 18 or older. However, minors would be allowed to help in all other situations except those that involve actions for which a permit is required (handling the birds, basically) when the permittee or a subpermittee is not present. Since we would not issue a rehabilitation permit to minors, we will not authorize minors to perform activities that require a permit without supervision.

Comment: Subpermittees' names should be on file, but including all their qualifications could be difficult for big facilities, where large numbers of subpermittees change frequently.

Service Response: The application requirement to list the qualifications of the subpermittees has been deleted from the rule. However, this information is still requested on the permit application form 3-200-10b. We intend to drop this requirement from the form when our application forms are revised and reauthorized. Meanwhile, new subpermittees need only be named in writing to the issuing office without an accompanying description of their qualifications.

Comment: Large facilities should not have to immediately submit the names of new subpermittees. This requirement is too burdensome with so much turnover amongst volunteers at large facilities. Instead, there should be a requirement to send in amendments every quarter listing the current subpermittees.

Service Response: Not everyone who works under a rehabilitation permit needs to be on file with the Service as a subpermittee under that permit. Numerous people may be assisting at large rehabilitation centers. However, only those who will be conducting activities that require a permit in the absence of the permittee or a named subpermittee must be on file with the permit office. For instance, a facility may have 25 volunteers, but only four who conduct activities that require permit authority when the permittee is offsite or otherwise unavailable to oversee activities conducted under his or her permit. In that case, only those four volunteers need to be on file with the Service as subpermittees. The remaining 21 people do not need to be named subpermittees as long as the permittee or one of the four listed subpermittees is present when they conduct activities that require permit authorization. We believe that, even for large centers with high volunteer turnover, the need to update named subpermittees will not be onerous, since not everyone assisting with permitted activities is required to be on file with the Service.

Comment: This requirement to list subpermittees would be particularly burdensome as applied to those who transport birds to and from the facility. Transporters don't really have contact with the birds anyway. Could they merely be listed with the rehabilitator's records, and not with the permit office?

Service response: Many transporters have frequent contact with the birds they pick up and deliver to rehabilitators, so we believe they should be treated like other subpermittees.

Comment: The subpermittee system should be replaced by an apprentice licensing program with mandatory training.

Service response: We believe the subpermittee requirements of the rule, together with the oversight of permitted rehabilitators, will provide sufficient training for persons entering the field of migratory bird rehabilitation. This system has been in place for many years, with few problems.

Comment: The rule does not specify whether the subpermittee's facilities must meet the same requirements as the permittee's facilities.

Service response: The rule has been revised to state that the subpermittee's facilities must meet the same standards as the permittee's facilities.

Comment: Do a subpermittee's facilities really need to be approved when it is just a shoe box for nestlings?

Service response: The Service does not need to see photographs and diagrams of a shoe box. However, the address where any subpermittee will be caring for nestlings outside of the permittee's premises must be provided in writing to the permit office and authorized by the permit office before any nestlings are transferred to the alternate site.

Comment: The rule does not state whether subpermittees are bound by all the requirements of the regulation. Also, who is responsible to supervise off-site activities of subpermittees?

Service response: The final rule states that “As the primary permittee, you are legally responsible for ensuring that your subpermittees, staff, and volunteers adhere to the terms of your permit when conducting migratory bird rehabilitation activities.”

Comment: Subpermittees who provide frequent or long-term care offsite should be required to obtain their own permits.

Service response: We have considered mandating that permittees who provide frequent and/or, long-term care off-site obtain their own permits, but decline to do so because some people simply do not want to be permittees but may be able to provide quality care for birds under another person's permit. The rule requires the same standards for subpermittee facilities, and because it requires the permittee to be responsible for the subpermittee's rehabilitation activities, we believe that permittees will keep sufficient oversight over subpermittees to protect the birds under their care.

Imprinting § 21.31(e)(4)(i). Comment: The provision requiring imprinted birds to be turned over to the Service should be removed from the rule. Sometimes rehabilitators receive birds that have already been imprinted. And, some imprinting is likely to occur no matter what.

Service response: The rule has been revised to clarify that the requirement to transfer imprinted birds to a third party applies only to birds that have been imprinted while under the care of the permittee. The permittee will be required to transfer any bird imprinted under his or her care to another facility specified by the Service. After no longer than 180 days, however, all surviving birds that are nonreleasable, whether imprinted or not, must be transferred to another permit (unless additional authorization is granted from the permit office)—since the rehabilitation permit only authorizes possession of birds undergoing rehabilitative care.

Comment: Turning birds over to the Government will result in needless euthanasia. Rehabilitators will have to tell the public that the birds were transferred and possibly euthanized.

Service response: In the rare situations when the Service has removed imprinted birds from a permittee, we have placed the birds with migratory bird education permit holders to use in educational programs.

Comment: Some degree of imprinting will not interfere with a bird's ability to survive in the wild. If birds are too imprinted to survive in the wild, they should be placed in licensed sanctuaries.

Service response: The intent of this provision is to require rehabilitators to take precautions to prevent birds from becoming so habituated to humans that they cannot survive in the wild. It is in the best interest of migratory birds as a whole that they not be perceived as pets by the public or treated as such by permittees. Therefore, the rule requires that rehabilitators take precautions to avoid imprinting, and provides that the Service may remove birds from the care of those who do not do so.

Comment: The Service should not take imprinted birds away from rehabilitators because the Government doesn't have good facilities for holding them.

Service response: We do not hold birds in these situations. We place them with other permittees whom we have identified prior to the transfer.

Comment: The rule should require that all imprinted birds that are not listed as threatened or endangered be euthanized.

Service response: We do not agree that all non-listed imprinted birds should be euthanized. (See next comment.)

Comment: Imprinted birds should be allowed to be used for education or for foster parenting.

Service response: Imprinted birds may be used for foster parenting under the proposed rule—but the rule does not allow persons to use birds they themselves have allowed to become imprinted. The Service places imprinted birds with other permit holders for foster parenting or educational use.

Release § 21.31(e)(4)(ii) Comment: The 180-day limit for keeping birds in rehabilitation without additional authorization is too short. Many birds take over a year to be ready for release, plus it must be done during an appropriate season. A specific limit is arbitrary and not necessary. This decision should be left to the rehabilitator.

Service response: Rarely do birds need to be kept longer than 180 days. If more time is needed for rehabilitation, or if a bird must be held until the appropriate season for its release, the rule provides that the permittee need only contact the permit office for authorization. The instances where birds need longer than 180 days to be readied for release are infrequent enough that we do not consider this notification requirement to be burdensome. The longer birds remain in rehabilitation, the greater the chance they will become habituated to captivity. Moreover, without a limit, birds could be kept indefinitely.

Comment: The 180-day provision is good for experienced rehabilitators, but less experienced rehabilitators should still be held to the 90-day period with permission needed to extend it.

Service response: We do not agree that less experienced rehabilitators should be allotted less time to treat and condition birds for release.

Comment: The proposed rule says nothing about the need to release birds as soon as possible. The 180-day period is too long. Birds will become habituated to people and the conditions of rehabilitation facilities.

Service response: The final rule states that birds must be released as soon as they are releasable (and seasonal conditions allow). Therefore, the 180-day limit will apply only to those birds that are not yet ready for release.

Comment: Rehabilitators should not need to get permission to keep birds longer than 180 days for foster parenting.

Service response: The purpose of the rehabilitation permit is to authorize possession of birds so that they may be provided the rehabilitative care necessary to return them to the wild. If a bird is not ready for release before the 180-day limit, but is still expected to be releasable in the future, and is suitable for foster parenting, it may be used for that purpose until released. If the rehabilitator's veterinarian determines that a bird is permanently injured and nonreleasable, the rehabilitator may submit a written request to possess the bird for foster-parenting purposes. If the request is justified and approved, the Regional permit office will amend the rehabilitator's permit to reflect this authority.

Comment: The rule should include the guidelines for release that are contained within the Minimum Standards for Wildlife Rehabilitation, or it should provide some other guidance for when the bird is ready for release.

Service response: Generally, regulations should state what is required, not what is recommended. In the interest of flexibility, the rule does not establish regulatory requirements for release of birds. There are simply too many variables. The Minimum Standards and other publications of the rehabilitation community, as well as the guidance provided by peers, can serve as valuable sources for determining suitable conditions for release.

Comment: Rehabilitators should not have to coordinate with State and local wildlife officials about where to release the birds. Most local and State wildlife officials would not want to be consulted so frequently.

Service response: This was a recommendation in the proposed rule, not a requirement. Since it was not a requirement, we have removed it from the final rule.

Comment: State conservation agencies should be notified before rehabilitators release listed species.

Service response: The rule provides that if a bird is of a species that is listed by the Federal Government as threatened or endangered, the rehabilitator must coordinate with the Service before releasing the bird. In many cases, we will involve the State because we work in partnership with State agencies on issues involving wildlife. However, some States may not wish the Federal Government to mandate State involvement in the release of federally listed species via Federal regulation. It is more appropriate that State regulations, rather than Federal, address whether or not rehabilitators must contact the State before releasing listed species.

Comment: The rehabilitator should not need to contact the Service before releasing a threatened or endangered species.

Service response: We strongly disagree with this comment. The determination of where to release an individual of a listed species is more critical than it is for nonlisted species in terms of overall success of the species. The optimal release site may be one where the individual bird is most likely to rejoin wild populations and reproduce. The Service's biologists will often have information the rehabilitator does not regarding the location and viability of wild populations of listed migratory bird species.

Euthanasia § 21.31(e)(4)(iii) and § 21.31(e)(4)(iv). Comment: You should delete the requirement to euthanize birds that cannot feed themselves, perch upright, or ambulate; or are blind, or require amputation of a leg, foot, or wing at the elbow or above. Some birds with these conditions can lead useful lives as educational birds or foster parents for juvenile migratory birds in rehabilitation. These decisions should be left up to the permittee and the veterinarian.

Service response: The euthanasia requirements are based on humane consideration for the birds. The handicaps and stress caused by these type of injuries frequently lead to repeated additional injuries and ailments throughout the duration of the bird's life. The Service does not believe that birds should be subjected to this trauma and poor quality of life for the sake of their human keepers, even if such birds could be used as educational tools. Educational programs face no shortage of less disabled nonreleasable birds. However, because extraordinary circumstances may warrant an exception to this rule, we have revised the rule to include the following narrow exemption: The permit issuing office may waive the euthanasia requirement where (1) a veterinarian makes a written recommendation that the bird should be kept alive despite the severity of its injuries, including an analysis of why the bird is not expected to experience the injuries and/or ailments that typically occur in birds with these injuries, and a commitment (from the veterinarian) to provide medical care for the bird for the duration of its life, including complete examinations at least once a year; and (2) a placement is available for the bird with a person or facility authorized to possess it ( e.g. , someone with a migratory bird education permit), where it will be provided that veterinary care.

Comment: If a permitted rehabilitation facility is willing to take on the burden of caring for birds with the types of injuries for which the rule requires euthanasia, why not let them?

Service response: First and foremost, the Service considers keeping a bird alive under these conditions to be inhumane ( see above). Secondly, the purpose of the rehabilitation permit is to recover birds for release to the wild, not to retain birds in captivity. Nonreleasable birds must be transferred to another permit to be legally possessed. Most rehabilitated birds that are kept in captivity are transferred to an educational use permit, which requires that the bird be used for conservation education. The Service does not issue permits simply to keep birds in captivity. Allowing people to maintain migratory birds in sanctuary situations would compromise the status of migratory birds as wildlife. We believe that this outcome would be detrimental to migratory birds and would constitute an abrogation of our responsibility to protect and conserve wildlife.

Comment: The mandatory euthanasia requirements will stop people from bringing sick and injured birds to rehabilitators.

Service response: We think this scenario is highly unlikely. People bring birds to rehabilitators out of humane consideration for the birds. The euthanasia requirements are borne from the same humane consideration. If a bird has sustained trauma and injuries that are likely to cause the bird stress, pain, and/or further injury throughout the duration of its life, euthanasia is the kindest, most humane treatment people can provide.

Comment: Euthanasia for these types of injuries should only be mandatory if the bird does not acclimate well and cannot be placed.

Service response: We disagree with this comment. Birds should not be subjected to amputations only to be euthanized later due to failure to acclimate. That is why the rule states that birds must be euthanized rather than undergo amputation.

Comment: Euthanasia requirements should not be different for listed species. Rehabilitators should be authorized to euthanize any bird that is suffering due to an injury too serious to heal without having to call the Service for permission.

Service response: The final rule continues to require rehabilitators to contact the issuing office before euthanizing listed species. The reason for this difference in treatment is that a rare situation could arise in which the suffering of the bird might be outweighed by a critical need to recover its species. For example, the addition of a blind endangered bird could be significant to a dwindling gene pool. The rule continues to provide that the rehabilitator may proceed with euthanasia if Service personnel are not available and the euthanasia is warranted because of humane considerations for the bird.

Placement and Transfer of Birds § 21.31(e)(4)(v) and § 21.31(e)(4)(vi). Comment: Rehabilitators should not have to get prior approval from the Service before placing nonreleasable birds or their parts or feathers with another permittee authorized to hold migratory birds.

Service response: The requirement to obtain approval from the issuing office before transferring nonreleasable birds will ensure that birds are transferred to persons authorized to possess such birds, and not to someone whose permit has expired, or who already has the maximum number of birds authorized by his or her permit.

Comment: Rehabilitators should be required—not just allowed—to donate dead specimens to institutions authorized by permit to possess migratory bird specimens or exempted from the permit requirements under § 21.12.

Service response: We encourage permittees to transfer dead specimens to other permit holders or exempt institutions who can use them. However, many rehabilitators are already stretched to their limits trying to care for the live birds they hold under their permit, and the Service believes they should not be burdened with an additional requirement to locate authorized persons to receive each dead specimen.

Comment: The rule should not require that all dead eagles be sent to the National Eagle Repository. Rather, it should require permittees to notify the State so the State can do necropsy, and then send the birds to the Repository.

Service response: Not all States wish to be contacted by rehabilitators with eagle carcasses. The rule has been revised to clarify that permittees must comply with State requirements requiring State notification and necropsy—where such requirements exist.

Imping Feathers § 21.31(e)(4)(viii) . Comment: The rule does not specify what the Service considers to be a “reasonable” number of feathers that a rehabilitator may keep for imping purposes.

Service response: We do not believe the regulation should establish a specific number of feathers that may be legally retained for imping purposes. Based on location, populations of species, and specialization, rehabilitators will need varying numbers of feathers of particular species. The final regulation states that a “reasonable number” will be based on the numbers and species for which the permittee regularly provides care.

Taking blood samples § 21.31(e)(4)(ix) . Comment: The rule should allow rehabilitators to take blood and tissue samples for research that would aid rehabilitators and the species with which they work, as long as doing so does not jeopardize the individual bird. For example, blood may be drawn to establish normal values for particular species, or to research contagious diseases that are not human health hazards.

Service response: We have modified this provision to clarify that samples may be taken for purposes of diagnosis and recovery not just of the individual bird, but of the birds under the permittee's care, generally. For broader research purposes, the rehabilitator should obtain a migratory bird scientific collecting permit issued under 50 CFR 21.23.

Recall of birds § 21.31(e)(4)(xi) . Comment: The proposed rule states that migratory birds held under a rehabilitation permit remain under the stewardship of the Service and may be recalled at any time. Under what circumstances would the Government recall birds? What is the justification?

Service response: The rule has been revised to clarify that permittees do not own the migratory birds they hold under this permit. The language concerning recall has been removed because we do not believe it is necessary that this regulation state that the Service would and does remove birds from the possession of permittees when the quality of care provided to the birds is not adequate or when a permittee violates wildlife laws, regulations, or the terms of the permit.

Notification to the Service § 21.31(e)(5) and throughout. Comment: The rule contains too many notification requirements. The requirements for permittees to contact the Service so often are too burdensome.

Service response: The proposed regulation contained 11 discreet requirements for the permittee to notify the Service and/or gain additional authorization under certain circumstances. Ten of those notification requirements are not new in this regulation, but are carried over from the current standard conditions attached to all existing permits. Seven apply only to threatened and endangered species, and are needed so that the Service can determine the best placement for these birds. The Service is engaged in active recovery efforts for many listed migratory bird species, and because of the relative scarcity of listed species, the placement of each individual can have greater ramifications for the conservation of the species than is the case for non-listed species. Because listed species are relatively rare, most rehabilitators do not routinely encounter them, so these notification requirements will not be used often and should not create a burden for rehabilitators.

Of the remaining three notifications, two should seldom be needed: the requirement to contact a Service law enforcement officer when there is reason to believe that a bird has been injured as the result of criminal activity; and the requirement to gain approval from the issuing office to keep a bird longer than 180 days. The final requirement—to obtain authorization from the issuing office before transferring a nonreleasable bird to another person—is an important safeguard to ensure that birds are placed with persons who are legally authorized to possess migratory birds.

The only new notification provision the proposed rule contained was the requirement to contact the Service if the rehabilitator suspects that a bird has an avian virus or other contagious disease. We have revised that provision to require the permittee to contact his or her State or local authority that is responsible for monitoring the particular health threat, rather than notify the Service. In the case of West Nile Virus, for example, the public is usually advised to contact their county public health agency to report diseased birds, but in some States a designated State agency is responsible for receiving those calls. While this information may be of some use to the Service, we do not have primary responsibility for responding to reports of contagious diseases that are considered to be public health threats, even when such diseases are carried by birds. Requiring rehabilitators to contact the responsible State or local agency, rather than the Service, will eliminate what would have been a redundant notification. Because rehabilitators are in a good position to contribute to nationwide efforts to monitor contagious avian diseases, the requirement to notify the appropriate State or local authority will benefit to the public by enhancing efforts to protect the health and safety of humans, livestock and wildlife.

Comment: The Service should set up a 24-hour hotline to receive the required calls from rehabilitators, and it should be an 800 number.

Service response: Aside from the notifications required in circumstances involving threatened and endangered species, which we believe will not be exercised often, the rule does not contain excessive requirements to contact the Service ( see above).

Comment: The rule relies too heavily on the Internet for obtaining phone numbers of other Service offices. Other forms of access to such information should be provided.

Service response: We are revising our permit information tracking system so that it can record and generate the phone numbers for Service Law Enforcement offices that are local to the permittee. Permits will be issued using this new capacity, with the necessary contact information printed on the permit. The rule has been revised to reflect the fact that the contact information for these offices is listed on the permit.

Comment: Rehabilitators should not have the burden of contacting the Service immediately upon receiving a threatened or endangered species. This provision fails to recognize the actual conditions under which rehabilitators are working. Immediate notification could jeopardize the bird, which may need immediate stabilization. Often personnel are not there to receive the calls ( e.g. , on weekends)

Service response: The rule has been revised to require the permittee to contact the Service within 24 hours of receiving a threatened or endangered species. If Service personnel cannot be reached, you should leave a message.

Comment: The proposed rule requires rehabilitators to report birds that appear to have been injured by criminal activity to both the Office of Law Enforcement and to the Migratory Bird Permit Office. Rehabilitators should not have to call two Service offices to report this.

Service response: We agree with this comment and have revised the rule to remove the requirement to notify the permit office.

Comment: Immediate notification to law enforcement where birds appear to have been injured as the result of criminal activity is not practicable. Rehabilitators are often busy stabilizing bird(s). Instead, the requirement to notify the Service should be “within 48 hours.”

Service response: Service Law Enforcement personnel need to be notified immediately when it appears a crime has taken place. Otherwise, evidence needed to build a successful investigation may be compromised or lost before it can be collected.

Comment: “Criminal activity” should be more clearly defined. Poisoning and electrocution should not be considered criminal activity.

Service response: Poisoning and electrocution are considered criminal activity in many circumstances. Power companies and pesticide manufacturers and applicators are frequently held liable for killing birds, particularly when ample evidence exists that they knew or should have known that their actions were likely to kill birds. Electrocution of birds on power lines is generally considered a prosecutable violation, since reasonable industry-accepted measures have been identified that can be implemented to avoid killing migratory birds. We believe that the rule need not further specify what is meant by criminal activity, since it is not possible to define all the criminal activities that could take place, or always clearly identify under what circumstances a particular action is criminal. The provision requires that rehabilitators notify the Service when they have reason to believe that birds under their care were injured as the result of a criminal act, so that we have the opportunity to pursue the case, if appropriate.

Comment: The rule should require permittees to contact their State conservation agencies as well as the Service whenever notification is required.

Service response: Not all States want these notifications. As a Federal agency, we will not impose this requirement on States that do not wish to be contacted. It is more appropriate for State regulations to address this requirement.

Recordkeeping § 21.31(e)(7) . Comment: It would be useful to some States if the information required in the recordkeeping provisions included the county and distance to the nearest town.

Service response: The information required to be kept in the permittee's records is the same information that we ask for in the annual report. It is not useful for our purposes to document the county or the nearest town, and we do not have enough staff to sift through extra information that we will not use. Also, we do not wish to burden permittees by requiring them to keep and submit information that we will not use. Those States that find that information useful may wish to include those items as reporting requirements in their State regulations.

Comment: Rehabilitators should be required to record the location where the bird was found, if known, because it is important for purposes of data collection and release. Also, the location of release should be required in records for enforcement purposes. The incident that caused the distress or injury should be recorded ( e.g. , collision with window, cat attack), if known, for purposes of future analysis. Records should include the name and contact information of the person who found and/or delivered the bird because of possible exposure to zoonotic diseases.

Service response: While much of this information could be useful to the rehabilitator, or to a third party, we do not at this time have a need to collect this information. If permittees wish to keep these records, we encourage them to do so, but we see no reason to require information to be collected and submitted to us when we will not use it.

Comment: Why should the permittee be required to keep the records for 5 years? That should be the Service's responsibility. This requirement is an unnecessary burden on the permittee.

Service response: The requirement that permittees keep records for 5 years predates this rule and applies to all Service permits, and is codified at 50 CFR part 13.46. We also keep the information submitted via annual reports, but if discrepancies arise, permittees may benefit by being able to produce their own records.

Additional Conditions May be Placed on the Face of the Permit. § 21.31(e)(9). Comment: There should be no further reason to condition permits if a person meets the requirements set forth in the rule. This provision appears to contradict the rule's stated intent to “codify * * *, clarify * * *, and * * *specify” migratory bird rehabilitation permit policy. The Service should specify what sort of “additional conditions” are meant by this provision. It's too open-ended and could be abused.

Service response: We have revised this provision to clarify its meaning and scope. Our intent is to provide that permits may be tailored so that they differ from one another according to the circumstances of the applicants ( e.g. , what kind of experience and facilities they have). If all rehabilitation permits had exactly the same set of standard conditions and no additional conditions, every permittee would be qualified to rehabilitate any number of all types of migratory birds, without exception. For example, rehabilitators who intend to rehabilitate only nestlings do not need extensive caging. The Service needs to be able to differentiate what types of birds these nestling rehabilitators are authorized to rehabilitate from those a passerine rehabilitator is authorized to rehabilitate or those a large facility with flight cages or pools for waterbirds may rehabilitate. This can be done only if permits can be further conditioned on their face at the time of issuance (or later, if the permittee demonstrates that he or she has expanded the facilities and/or gained additional experience).

Comment: The “additional conditions” provision would be more palatable if there existed some kind of review/appeal process for applicants to appeal.

Service response: Regulations addressing the process for challenging permit decisions, including permit conditions, are set forth in 50 CFR 13.29. These regulations address procedures for all Service permits, and cover how to file a Request for Reconsideration to the issuing office. They also set forth procedures for filing a written appeal to the Regional Director if the applicant/permittee is dissatisfied with the determination made on the Request for Reconsideration.

Comment: To avoid the creation of additional conditions, the Service should establish a multi-tiered permit incorporating different levels of experience and facilities standards, where each level has standardized conditions.

Service response: We do not believe such a system could adequately capture all the variables and particulars that make one situation different from another. Additional conditions would still be necessary in order to accommodate these variables, or else some permits would simply have to be denied—which we do not view as a good alternative.

Liability Clause § 21.31(e)(10). Comment: As worded, the provision of the proposed rule that indemnifies the Service from liability could confer unreasonable liability to the permittee, resulting in lawsuits against rehabbers.

Service response: We have removed this provision from the rule because permit liability for all Service permits is already set forth at 50 CFR 13.50, which reads: “any person holding a permit under this subchapter B assumes all liability and responsibility for the conduct of any activity conducted under the authority of such permit.”

Oil Spill Provisions § 21.31(f). Comment: Why does the Service want to be notified whenever a dead bird is found at the site of an oil spill?

Service response: There are a variety of legal aspects relating to oil spills, including the ability of the government to recover damages for birds and other wildlife killed or injured, and in some cases to bring criminal charges. In such cases, the Service must be able to document the number and locations of dead birds and other wildlife before they are removed from the site. Since it is not generally possible to determine until after the immediate cleanup or site stabilization whether this information will be needed, we collect it routinely.

Comment: How can the public get copies of Best Practices for Care of Migratory Birds During Oil Spill Response , the document referenced in the rule?

Service response: We have inserted a footnote into the rule, providing information on how to obtain this document.

Term of Permit § 21.31(h). Comment: Permit tenure should be 1 year only. If a 5-year tenure is included in the final regulation, the wording should be more clear as to whether all rehabilitation permits will be issued for 5 years, or whether some will have shorter terms.

Service response: Because the majority of rehabilitators' circumstances will not substantially change from year to year, we do not see any purpose in renewing permits annually. We believe that the annual report requirement will allow the Service to monitor the factors that are most important to safeguard the welfare of birds held under rehabilitation permits. We do not wish to burden the permittees with an annual permit renewal, nor do we believe that processing every permittee's renewal every year is a good use of limited Service resources. Although most permits will have a tenure of 5 years under the final regulation, the wording “No rehabilitation permit will have a term exceeding five (5) years” allows the Service the flexibility to issue some rehabilitation permits for less than 5 years, if appropriate.

Comment: The rule does not contain any provisions for the renewal process.

Service response: Regulations covering permit renewal for all Service-issued permits are set forth in 50 CFR 13 (General Permit Procedures). For the rehabilitation permit, as for other migratory bird permits, the permittee need not submit all of the information required in an original permit application. Instead, he or she should submit a Service permit renewal form, which is mailed to all permittees when their permits are nearing expiration. The form asks the permittee to certify that the information previously submitted (through either the original permit application or a subsequent renewal or amendment) is still accurate. If any required information has changed, the permittee must submit the updated information.

Comment: The annual report/permit renewal process is not timed smoothly, with permits expiring at the end of the calendar year, but annual reports due at the end of the following January. Renewal permits should be sent separately (first), so the rehabilitator does not have to operate under an expired permit.

Service response: We have adjusted the timing of the permit renewal process to address this problem. Rehabilitation permits will be issued to be valid starting on April 1, rather than January 1. As existing permits are renewed, they will be re-issued with a 5-year tenure, as provided by this rule. Permits will expire on March 31st rather than December 31st. This will result in a more logical, coordinated process wherein permittees can submit their annual reports and renewal requests together, and the renewal request will be received well before the expiration of the permit.

Comment: Renewal should be correlated with State permit renewal.

Service response: Permit tenure and renewal dates vary widely from State to State. Federal permits would have to have different tenures depending on the State in which the permittee resides. Tracking and maintaining renewals under these circumstances would be very difficult for the Service. Therefore, we will continue to process renewals at the same time each year.

Will I need to apply for a new permit if I already have a Special Purpose—Rehabilitation permit? § 21.31(i) Comment: The rule does not say whether current permit holders will be “grandfathered,” or whether they will have to reapply under the new regulations.

Service response: Current permit holders need not take any special action as a result of the new rule. When it is time to renew their permits, if they wish to continue rehabilitating migratory birds, they should apply for renewal using the Service permit renewal form mailed to them by the issuing office. Rehabilitation permits will be renewed under the new permit category created by this rule. In addition, the final rule contains a “grandfather clause,” which states, in part: “If your facilities have already been approved on the basis of photographs and diagrams, and authorized under a valid § 21.27 special purpose permit, then they are preapproved to be authorized under your new permit issued under this section, unless those facilities have materially diminished in size or quality from what was authorized when you last renewed your permit, or unless you wish to expand the authorizations granted by your permit ( e.g. , the number or types of birds you rehabilitate).”

Inspections. Comment: The rule does not address rehabilitation facility inspections.

Service response: Inspection of permittees' facilities is addressed in 50 CFR 13.47. The regulations provide that a Service Law Enforcement official (“the Director's agent”) may inspect the premises, wildlife, and records at “any reasonable hour.”

Comment: Facility inspections should be conducted before issuing each permit and then at regular intervals during the term of the permit to ensure that facilities maintain standards.

Service response: Although we will conduct site visits prior to issuing some permits, we do not have the resources to inspect all applicants' facilities. As part of the application process, the applicant must submit photographs and diagrams of his or her facilities. These should provide enough information to determine whether most applicants' facilities are adequate. Many State conservation agencies have more resources available to them than we do, and are able to send officers out to perform inspections more regularly. Coordination between State agencies and the Service allows us to identify situations where problems exist and Federal inspection may be warranted.

Comment: Permitted rehabilitators should not be allowed to raise, rehabilitate, or release non-native species such as European starlings and house sparrows because these negatively affect native migratory bird species.

Service response: The Service does not have the authority to prohibit possession or rehabilitation of birds that are not protected by the Federal laws we are charged with implementing. We agree that rehabilitation of common invasive species such as starlings and house sparrows could have a minor negative impact on conservation of native species, and we would prefer that exotic species not be released to the wild. However, this issue is the jurisdiction of State governments, which have primary regulatory authority on most matters concerning wildlife.

Comment: The Service should transfer permitting authority to the States to administer, where States demonstrate they meet certain Federal standards.

Service response: At this time, the majority of the States have not developed specific regulations regarding migratory bird rehabilitation. As of 1999, according to a study conducted by Allan M. Casey III and Shirley J. Casey ( A Study of the State Regulations Governing Wildlife Rehabilitation During 1999 ), only 33 States had regulations addressing wildlife rehabilitation. These vary widely in terms of scope and the level of detail addressed. State regulations pertaining specifically to migratory bird rehabilitation are virtually nonexistent.

Comment: The rule should require that the permittee be a member of either the National Wildlife Rehabilitators Association (NWRA), the International Wildlife Rehabilitation Council (IWRC), or both.

Service response: We do not agree that membership in the NWRA or the IWRC should be a prerequisite for obtaining or maintaining a Federal migratory bird rehabilitation permit. Both associations have contributed to the increasing quality of wildlife rehabilitation, and they have much to offer rehabilitators in the way of continuing education, networking, and other services. However, both the NWRA and the IWRC are nongovernmental organizations and are not affiliated with the Service. The criteria of this rule should ensure that permittees have basic competence and qualifications necessary for migratory bird rehabilitation. As with any profession, rehabilitators will always be in a position to gain additional knowledge and skills. Membership in the NWRA and/or IWRC may provide a means of attaining this growth and improvement, should rehabilitators elect to join either or both associations.

Comment: The rule should require permittees to provide evidence of continuing education every 2 years.

Service response: While we strongly encourage permittees to attend classes, conferences, seminars, and presentations in order to increase knowledge and improve skills, we believe that the qualifications for obtaining the Federal permit, together with the experience gained by putting the permit to use, will guarantee a basic level of knowledge and experience sufficient to rehabilitate migratory birds, without our mandating additional formal training.

Comment: Some provisions of the rule will interfere with recovery operations of chemical companies that operate under special purpose rehabilitation permits. The troubling provisions include the following requirements: listing all individuals on the permit (helpers at the chemical company recovery operations are usually seasonal college students and other temporary labor), conforming to facility requirements, maintaining a working relationship with veterinarians, and establishing a working relationship with another permitted rehabilitator. These recovery operations only hold birds long enough to clean off sodium carbonate (Na 2 CO 3 ) or to allow fresh water to rinse off dilute phosphoric acid.

Service response: Because such recovery efforts operate under parameters much different from those governing the activities of “typical” migratory bird rehabilitators, the Service will continue to issue permits for this type of recovery operation under the Special Purpose permit (§ 21.27) rather than the permit category created by this rule.

Comment: The rule has far too many new paperwork requirements.

Service response: This rule does not introduce any new paperwork requirements. All reporting requirements remain unchanged from what has been required under the Special Purpose—Rehabilitation permit category.

Section 7(a)(2) of the Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. 1531, et seq. ), requires all Federal agencies to “insure that any action authorized, funded, or carried out * * * is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat.” The Service underwent intra-Service consultation pursuant to section 7 of the ESA and determined that the activities authorized by this rule will not jeopardize listed species or result in destruction or adverse modification of critical habitat.

Responsibilities of Federal Agencies To Protect Migratory Birds (Executive Order 13186). This rule has been evaluated for impacts to migratory birds, with emphasis on species of management concern, and is in accordance with the guidance in E.O. 13186.

Regulatory Planning and Review (Executive Order 12866). In accordance with the criteria in Executive Order 12866, this rule is not a significant regulatory action. OMB has made this final determination of significance under E.O. 12866.

a. This rule will not have an annual economic effect of $100 million or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. A cost-benefit and economic analysis is not required.

b. This rule will not create serious inconsistencies or otherwise interfere with other agencies' actions. The Fish and Wildlife Service is the only Federal agency responsible for enforcing the Migratory Bird Treaty Act.

c. This rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. This rule does not have anything to do with the afore-mentioned programs.

d. This rule does not raise novel legal or policy issues. Rehabilitation activities for migratory birds currently operate under a different permit than that proposed in this rule.

Regulatory Flexibility Act. Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. , as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must either certify that the rule will not have a significant economic impact on a substantial number of small entities ( i.e. , small business, small organizations, and small governmental jurisdictions) or prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities.

We have examined this rule's potential effects on small entities as required by the Regulatory Flexibility Act. This rule requires applicants for migratory bird rehabilitation permits to pay the fee listed in the Service permit application fee schedule at 50 CFR 13.11. Currently, the Service waives fees for migratory bird rehabilitation permit applicants. This rulemaking reinstates the standard $25 permit application fee and extends the term of the permit to 5 years. The net effect is that approximately 2,500 persons will pay $25 every 5 years to obtain and renew migratory bird rehabilitation permits, amounting to $5 per year per rehabilitator. Therefore, we certify that this action will not have a significant economic impact on a substantial number of small entities. A final Regulatory Flexibility Analysis is not required. Accordingly, a Small Entity Compliance Guide is not required.

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

a. This rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. We have determined and certified pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq. , that this rulemaking will not impose a cost of $100 million or more in any given year on local or State government or private entities.

b. This rule will not produce a Federal mandate of $100 million or greater in any year; i.e. , it is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

Takings. In accordance with Executive Order 12630, the rule does not have significant takings implications. This rule will not result in the physical occupancy of property, the physical invasion of property, or the regulatory taking of any property. A takings implication assessment is not required.

Federalism. In accordance with Executive Order 13132, and based on the discussions in Regulatory Planning and Review above, this rule does not have significant Federalism effects. A Federalism assessment is not required. Because of the migratory nature of certain species of birds, the Federal Government has been given responsibility over these species by the Migratory Bird Treaty Act. This rule does not have a substantial direct effect on fiscal capacity, nor does it change the roles or responsibilities of Federal or State governments or intrude on State policy or administration.

Civil Justice Reform. In accordance with Executive Order 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system, and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. The Department of the Interior has certified to the Office of Management and Budget that this rule meets the applicable standards provided in Sections 3(a) and 3(b)(2) of E.O. 12988.

Paperwork Reduction Act. This rule does not contain new or revised information collection for which Office of Management and Budget approval is required under the Paperwork Reduction Act. Information collection associated with migratory bird permit programs has been approved by OMB under control number 1018-0022, which expires April 30, 2004. The Service 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.

National Environmental Policy Act. We have determined that this rule is categorically excluded under the Department's NEPA procedures in 516 DM 2, Appendix 1.10.

Government-to-Government Relationship with Tribes. In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), E.O. 13175, and 512 DM 2, this rule will have no effect on federally recognized Indian tribes.